r 


E.  M  Macfarlam; 


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THE  LIBRARY         | 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

MacFarlane,  Schaefer  h  Haun 


C  g!t-Do-rY>»a  ,      Con  5f»fuTi'ov\- 

THE 

CONSTITUTION 


OF   THE 


STATE  OF  CALIFORNIA 


ADOPTED  IN  CONVENTION,  AT  SACEAMENTO,  MARCH  3,  1S79, 

RATIFIED  BY  A  VOTE  OF  THE  PEOPLE  MAY  7,  1879 

TOGETHER   WITH 

ALL  AMENDMENTS  ADOPTED   TO  AND  INCLUDING 
OCTOBER  26,  1915 

EDITED  BY 

EDWARD  F.  TREAD  WELL,  LL.  B. 


FOURTH  EDITION 


CONTAINING    ALL    CITATIONS    IN    CALIFORNIA    REPORTS, 
VOLS.   1  TO   169,  CALIFORNIA  APPELLATE  REPORTS, 
VOLS.    1    TO    26,    UNITED    STATES    SUPREME 
COURT  REPORTS,  VOLS.  1  TO  238,  FEDERAL 
REPORTER,  VOLS.   101  TO   225,  RAIL- 
ROAD COMMISSION  REPORTS, 
VOLS.  1    TO    6 

ALSO 

THE    CONSTITUTION    OF    CALIFORNIA     OF    1849,    THE 

CONSTITUTION   OF   THE   UNITED   STATES,    AND 

THE  TREATY  OF  GUADALUPE  HIDALGO 


SAN  FRANCISCO 

BANCROFT-WHITNEY  COMPANY 
1916 


Copyright,  1902 

BY 

Bancroft-Whitney  Company 
Copyright,  1907 

BY 

Bancroft-Whitney  Company 
Copyright,  1911 

BY 

Bancroft-Whitney  Company 
Copyright,  1916 

BY 

Bancroft-Whitney  Company 


3 

I'll  t 


San  Francisco 

The  Filmer  Brothers  Electrotype  Company 

Typographers  and  Stereotypers 


TABLE  OF  CONTENTS. 


Page 
Introduction    v-xi  v 

Table  of  Cases  Cited xv-lviii 

Table  of  Contents  of  Constitution  of  1879 lix-lxvi 

Constitution  of  California  of  1879   (Not   Annotated) 1-125 

Constitution  of  California  of  1879   (Annotated) 127-615 

Table  of  Statutes  Declared   Unconstitutional €17-622 

Table  of  Parallel  Sections  in  Constitutions  of  1849  and  1879.  .  .  .623-625 

Table  of  California  Citations  to  Constitution  of  1849 627-629 

Table  of  California  Citations  to  Constitution  of  1879 631-644 

Table  of  United  States  and  Federal  Citations  to  the  Constitution 

of  California  of  1849 645 

Table  of  United  States  and  Federal  Citations  to  the  Constitution 

of  California  of  1879 647 

Table  of  California  Eailroad  Commission  Citations  to  Constitu- 
tion of  1879 649 

APPENDIX: 

Constitution  of  California,   1849    653-685 

Constitution  of  the  United  States 687-709 

Treaty  of  Guadalupe  Hidalgo 711-729 

Index    731-797 

(ill) 


671Bli 


Digitized  by  tine  Internet  Archive 

in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/constitutionofstOOcali 


INTRODUCTION. 


PREFATORY  NOTE. — Owing  to  the  numerous  amend- 
ments recently  adopted  to  the  Constitution  of  the  state,  a 
new  edition,  bringing  down  to  date  both  the  text  of  the 
Constitution  and  the  decisions  construing  its  provisions, 
appears  to  be  a  necessity.  While  each  election  has  added 
to  it  many  new  and  radical  features,  many  of  them  ex- 
tremely detailed  in  character  and  partaking  more  the  na- 
ture of  legislative  acts  than  provisions  of  a  constitution, 
still  the  people  at  the  last  general  election  defeated  a  propo- 
sition for  a  constitutional  convention  to  revise  the  Consti- 
tution. This  attitude  is  largely  due  to  the  fact  that  the 
Constitution  can  be  amended  about  as  readily  as  a  legis- 
lative act  can  be  passed,  and  the  habit  of  avoiding  all  con- 
stitutional questions  by  putting  legislation  in  the  form  of 
constitutional  amendments  is  growing  at  a  rate  calculated 
to  alarm  those  who  would  desire  to  see  the  Constitution  of 
the  state  a  permanent  instrument  of  fundamental  princi- 
ples and  provisions.  The  more  detailed  the  Constitution 
becomes,  the  more  often  will  it  require  amendment,  and  it 
has  already  been  amended  over  one  hundred  times.  This 
condition  will  continue  as  long  as  legislative  detail  is  re- 
tained in  the  Constitution.  The  present  condition  can  only 
be  considered  transitory,  and  must  eventually  be  remedied 
by  a  general  revision  in  which  all  legislative  matters  shall 
be  eliminated. 

In  preparing  this  volume,  the  aim  has  been  to  present  in 
the  most  convenient  form  the  decisions  of  our  own  courts, 
only  referring  to  the  decisions  of  other  courts  on  subjects 
which  our  own  have  left  untouched.  While  the  main  sub- 
ject is  the  present  Constitution  of  this  state,  the  book  also 
contains  the  former  Constitution,  the  Constitution  of  the 
United  States,  and  the  treaty  of  Guadalupe  Hidalgo. 

Important  features. — Some  important  features  of  the 
present  edition  are  the  following:  (1)  A  table  showing  all 

(V) 


Vi  INTRODUCTION. 

statutes  of  this  state  which  have  been  declared  unconstitu- 
tional in  whole  or  in  part.  There  are  over  one  hundred 
and  thirty  such  statutes  scattered  through  the  statute 
books.  (2)  A  table  of  all  California  citations  to  either  of 
the  California  Constitutions.  This  will  permit  a  hasty  ex- 
amination of  all  decisions  citing  any  particular  section  of 
the  Constitution.  (3)  A  table  of  parallel  sections  in  the 
Constitutions  of  1849  and  1879,  which  will  also  prove  a  use- 
ful feature.  (4)  Reference  to  all  citations  in  the  decisions 
of  the  federal  courts  regarding  the  Constitution  of  Califor- 
nia. (5)  The  present  text  of  the  Constitution  printed  sep- 
arately for  ready  reference.  (6)  References  to  decisions  of 
the  Railroad  Commission  of  the  state  of  California  dealing 
with  constitutional  questions. 

Annotations. — As  to  the  form  of  the  annotations,  the  aim 
has  been  to  present  in  the  most  condensed  form  the  prin- 
ciples of  the  decisions,  rather  than  any  statement  of  the 
facts  of  the  eases.  In  other  words,  w^e  have  attempted 
something  more  than  a  mere  digest,  or  syllabi  of  the  deci- 
sions. 

HISTORY   OF    THE    CONSTITUTION.— California   was 

admitted  into  the  Union  of  states  September  9,  1850.  The 
first  Constitution  was  adopted  in  convention  October  10, 
1849,  ratified  by  the  people  November  13,  1849,  proclaimed 
December  20,  1849.  This  Constitution  was  amended  in 
1857  and  1871,  and  the  article  on  the  judicial  department 
was  revised  in  1862. 

The  present  Constitution  was  adopted  in  convention 
March  3,  1879,  ratified  by  the  people  May  7,  1879,  and  went 
into  effect  July  4,  1879,  so  far  as  it  related  to  election  of 
officers,  etc.,  and  January  1,  1880,  for  all  other  purposes. 
Various  amendments  have  been  made  to  it  from  time  to 
time,  but  no  systematic  revision  of  it  has  been  effected. 

CONSTITUTIONAL  CONSTRUCTION.— The  Constitu- 
tion of  this  state,  unlike  the  federal  Constitution,  is  not  to 
be  considered  as  a  grant  of  power,  but  rather  as  a  limita- 


IXTRODUCTION.  vii 

tion  upon  the  powers  of  the  legislature.  (People  v.  Cole- 
man, 4  Cal.  46,  60  Am.  Dec.  581;  People  v.  JeAvett,  6  Cal. 
291;  State  v.  Rogers,  13  Cal.  159;  People  v.  Twelfth  Dis- 
trict Court,  17  Cal.  547;  Bourland  v.  Hiidreth,  26  Cal.  161; 
Ex  parte  McCarthy,  29  Cal.  395.) 

It  is,  hoAvever,  to  be  considered  as  a  grant  of  power  to  the 
other  branches  of  the  government.  (People  v.  Jewett,  6 
Cal.  291.) 

Words  and  phrases. — Where  a  word,  having  a  technical, 
as  Avell  as  a  popular,  meaning,  is  used  in  the  Constitution, 
the  courts  will  accord  to  it  its  popular  meaning,  unless  the 
nature  of  the  subject  indicates,  or  the  context  suggests, 
that  it  is  used  in  its  technical  sense.  (Weill  v.  Keniield, 
54  Cal.  Ill;  Oakland  Pav.  Co.  v.  Hilton,  69  Cal.  479,  11 
Pac.  3;  Oakland  Pav.  Co.  v.  Tompkins,  72  Cal.  5,  1  Am.  St. 
Rep.  17,  12  Pac.  801;  Miller  v.  Dunn,  72  Cal.  462,  1  Am. 
St.  Rep.  67,  14  Pac.  27;  People  v.  Eddy,  43  Cal.  331,  13 
Am.  Rep.  143.) 

Prospective  construction. — Provisions  of  the  Constitution 
are  to  be  considered  prospective  and  not  retrospective  un- 
less a  contrary  intention  clearly  appears.  (Gurnee  v.  Su- 
perior Court,  58  Cal.  88.) 

Reasonable  construction. — A  construction  should  be 
adopted  which  tends  to  certainty,  security,  and  substantial 
justice,  in  preference  to  that  Avhich  involves  uncertainty, 
insecurity,  and  inevitable  injustice.  (San  Gabriel  Land  etc. 
Co.  V.  Witmer  Bros.  Co.,  96  Cal.  623,  18  L.  R.  A.  465,  29  Pac. 
500,  31  Pac.  588.) 

But  where  a  provision  is  plain  and  unambiguous,  it  can- 
not be  changed  by  the  courts  to  avoid  what  may  seem  to  be 
an  absurdity  or  injustice.  (Moran  v.  Ross,  79  Cal.  549,  21 
Pac.  958.) 

All  the  provisions  of  the  Constitution  must  be  read  to- 
gether, and  effect  given  to  all  of  them.  They  must  receive 
a  practical  common-sense  construction,  and  be  considered 
with  reference  to  the  prior  state  of  the  law,  and  the  mis- 


viii  INTRODUCTION, 

chief  intended  to  be  remedied.     (People  v.  Stephens,  62  Cal. 
209;  French  v.  Teschemaker,  24  Cal.  518.) 

Construction   of  inconsistent   provisions   or   amendments   of   Con- 
stitution.    See  note,   18  Ann.  Cas.  725. 

MEANS  OF  CONSTRUCTION— Debates  of  the  conven- 
tion.— The  debates  of  the  constitutional  convention  may  be 
referred  to  for  the  purpose  of  construing  the  provisions  of 
the  Constitution.  (People  v.  Chapman,  61  Cal.  262 ;  People 
V.  Stephens,  62  Cal.  209 ;  Isola  v.  Weber,  13  Misc.  Rep.  100, 
34  N.  Y.  Supp.  77;  Higgins  v.  Prater,  91  Ky.  6,  14  S.  W. 
910;  State  v.  Doron,  5  Nev.  399;  Bank  of  Woodland  v. 
Pierce,  144  Cal.  434,  77  Pac.  1012.) 

Proceedings  of  constitutional  convention  as  aid  in  construing  Con- 
stitution.    See  notes,  10  Ann.  Cas.  1146;  6  R.  C.  L.,  §  65,  p.  67. 

Judicial  decisions. — Where  a  provision  of  the  former  Con- 
stitution, which  has  received  a  judicial  construction,  is  cop- 
ied into  the  new  Constitution,  it  will  be  presumed  that  it 
was  adopted  in  view  of  that  construction.  (Sharon  v. 
Sharon,  67  Cal.  185,  7  Pac.  456,  635,  8  Pac.  709 ;  Thomason 
V.  Ruggles,  69  Cal.  465,  11  Pac.  20 ;  Lord  v.  Dunster,  79  Cal. 
477,  21  Pac.  865;  People  v.  Freeman,  80  Cal.  233,  13  Am. 
St.  Rep.  122,  22  Pac.  173 ;  People  v.  O'Brien,  96  Cal.  171,  31 
Pac.  45;  Morton  v.  Broderick,  118  Cal.  474,  50  Pac.  644; 
Ex  parte  Ahern,  103  Cal.  412,  37  Pac.  390;  People  v.  Ed- 
wards, 93  Cal.  153,  28  Pac.  831;  Palache  v.  Hunt,  64  Cal. 
473,  2  Pac.  245.) 

The  mere  fact  that  a  change  is  made  in  the  phraseology 
of  such  provision  by  subsequent  revision  will  not  be  deemed 
a  change  in  the  law,  unless  such  phraseology  evidently  pur- 
ports an  intention  to  make  a  change.  (Hyatt  v.  Allen,  54 
Cal.  353.) 

The  same  rule  applies  to  provisions  of  the  Constitution 
borrowed  from  the  Constitutions  of  other  states,  and  where 
such  provisions  have  received  judicial  construction  in  such 
states,  they  are  to  be  deemed  to  have  been  adopted  in  view 
of  such  construction.  (People  v.  Coleman,  4  Cal.  46,  GO 
Am.  Dec.  581 ;  People  v.  Webb,  38  Cal.  467 ;  Ex  parte  Lid- 
dell,  93  Cal.  633,  29  Pac.  251.) 


INTRODUCTION.  IX 

The  exposition  of  the  Constitution  by  the  highest  court 
in  existence  under  it,  with  regard  to  laws  passed  while  it 
was  in  force,  should  be  accepted  by  all  succeeding  courts, 
without  regard  to  their  own  views  as  to  the  correctness  of 
the  doctrine.  (Staude  v.  Board  of  Election  Commrs.,  61 
Cal.  313;  Emery  v.  Reed,  65  Cal.  351,  4  Pac.  200;  Davis  v. 
Superior  Court,  63  Cal.  581.  See,  also,  Ferris  v.  Coover,  11 
Cal.  175.) 

Legislative  construction. — Legislative  construction  of  a 
constitutional  provision  is  a  method  of  interpretation. 
(Moran  v.  Ross,  79  Cal.  159,  21  Pac.  547 ;  San  Luis  Obispo 
County  v.  Darke,  76  Cal.  92,  18  Pac.  118  ;  Lord  v.  Dunster,  79 
Cal.  477,  21  Pac.  865 ;  Washington  v.  Page,  4  Cal.  388 ;  Bank 
of  Woodland  v.  Pierce,  144  Cal.  434,  77  Pac.  1012.) 

But  this  does  not  mean  that  the  hasty  and  inconsiderate 
legislation  of  three  winters  shall  be  conclusive  of  the  consti- 
tutionality of  such  legislation.  (People  v.  Wells,  2  Cal. 
198,  208.) 

The  fact  that  ever  since  the  adoption  of  the  Constitution 
all  executive  officers  other  than  the  governor  and  lieuten- 
ant-governor have  been  installed  in  office  on  the  first  Mon- 
day after  the  first  day  of  January  is  entitled  to  great  weight 
in  the  construction  of  the  meaning  of  the  Constitution. 
(People  V.  Nye,  9  Cal.  App.  148,  98  Pac.  241.) 

Universal  practice  of  assessors  may  be  looked  to  in  aid 
of  the  construction  of  provisions  of  the  Constitution  relat- 
ing to  taxation.  (Bank  of  Woodland  v.  Pierce,  144  Cal. 
434,  77  Pac.  1012.) 

POWER  TO  DECLARE  STATUTES  UNCONSTITU- 
TIONAL.— A  government  with  no  limits  but  its  own  dis- 
cretion is  not  a  constitutional  government,  in  the  true  sense 
of  the  term.     (Billings  v.  Hall,  7  Cal.  1.) 

The  Constitution  is  a  law,  and  must  be  construed  by 
someone,  and  the  judiciary  possesses  the  power  to  con- 
strue it  in  all  cases  not  expressly,  or  by  necessary  implica- 
tion, reserved  to  the  other  departments.  (Nougues  v. 
Douglass,  7  Cal.  65;  People  v.  Brooks,  16  Cal.  11.) 


X  INTRODUCTION, 

But  Avhere  the  right  to  determine  the  extent  and  effect 
of  a  restriction  in  the  Constitution  is  expressly  or  by  neces- 
sary implication  confided  to  the  legislature,  the  judiciary 
has  no  right  to  interfere  with  the  legislative  construction. 
(Nougues  V.  Douglass,  7  Cal.  65.) 

In  declaring  a  statute  unconstitutional,  the  court  cannot 
interfere  with  the  exercise  of  the  political  power  of  the 
legislature.     (Nougues  v.  Douglass,  7  Cal.  65.) 

The  courts  can  declare  a  statute  unconstitutional  only 
when  the  question  arises  as  a  pure  matter  of  law  unmixed 
with  matters  of  fact.  (Stevenson  v.  Colgan,  91  Cal.  649, 
25  Am.  St.  Rep.  230,  14  L.  R.  A.  459,  27  Pac.  1089.) 

Therefore,  the  constitutionality  of  a  statute  can  be  deter- 
mined only  from  the  facts  appearing  upon  the  face  of  the 
law,  taken  in  connection  with  matters  of  which  the  court 
can  take  judicial  notice.  (Bourn  v.  Hart,  93  Cal.  321,  27 
Am.  St.  Rep.  203,  15  L.  R.  A.  431,  28  Pac.  951 ;  Stevenson  v. 
Colgan,  91  Cal.  649,  25  Am.  St.  Rep.  230,  14  L.  R.  A.  459,  27 
Pac.  1089;  Conlin  v.  Board  of  Supervisors,  99  Cal.  17,  37 
Am.  St.  Rep.  17,  21  L.  R.  A.  474,  33  Pac.  753;  Fowler  v. 
Peirce,  2  Cal.  165.) 

But,  while  the  courts  may  declare  statutes  unconstitu- 
tional^they  have  no  power  to  avoid  the  effects  of  nonaction 
on  the  part  of  the  legislature.  (Myers  v.  English,  9  Cal. 
341.) 

Power    to    declare    statutes    void.     See     6    R.    C.    L.,     §§  67-76, 
pp.  70-78. 

Extrinsic  evidence  to  impeach  statutes.     See  notes,  13  Am.  Rep. 
648;  51  Am.  Rep.  616. 

Presumption  of  constitutionality. — An  act  of  the  legisla- 
ture is  presumed  to  be  constitutional.  (In  re  IMadera  Irr. 
Dist.,  92  Cal.  296,  27  Am.  St.  Rep.  106,  14  L.  R.  A.  755,  28 
Pac.  272,  675 ;  People  v.  Hayne,  83  Cal.  Ill,  17  Am.  St.  Rep. 
217,  7  L.  R.  A.  348,  23  Pac.  1 ;  In  re  Finley,  1  Cal.  App.  198, 
81  Pac.  1041 ;  In  re  Bunkers,  1  Cal.  App.  61,  81  Pac.  748 ; 
Title  etc.  Restoration  Co.  v.  Kerrigan,  150  Cal.  289,  119  Am. 
St.  Rep.  199,  8  L.  R.  A.  (N.  S.)  682,  88  Pac.  356 ;  In  re  Spen- 
cer, 149  Cal.  396,  117  Am.  St.  Rep.  137,  9  Ann.  Cas.  1105,  86 


INTRODUCTION.  xi 

Pac.  896 ;  Southern  Cal.  Lumber  Co.  v.  Peters,  3  Cal.  App. 
478,  86  Pac.  816.) 

A  statute  will  not  be  declared  unconstitutional,  except 
when  the  conflict  between  it  and  the  Constitution  is  palpa- 
ble and  incapable  of  reconciliation.  (Stockton  etc.  R.  R. 
Co.  V.  Common  Council  of  Stockton,  41  Cal.  147;  People  v. 
Sassovich,  29  Cal.  480.) 

Where  there  is  a  reasonable  doubt  as  to  its  constitution- 
ality, its  constitutionality  should  be  affirmed.  (University 
of  California  v.  Bernard,  57  Cal.  612 ;  Bourland  v.  Hildreth, 
26  Cal.  161.) 

An  act  is  to  be  so  construed,  if  possible,  as  to  make  it  con- 
stitutional.    (French  v.  Teschemaker,  24  Cal.  518.) 

Presumptions  as  to  constitutionality.     See  6  E.  C.  L.,  §§  98-103, 
pp.  97-104. 

Conflict  with  the  Constitution. — In  passing  upon  the  con- 
stitutionality of  a  statute,  the  court  is  not  required  to  imag- 
ine some  possible  contingency  in  M-hich  its  provisions  might 
conflict  with  the  Constitution.  (Woodward  v.  Fruitvale 
Sanitary  Dist.,  99  Cal.  554,  34  Pac.  239.) 

In  order  to  declare  a  statute  unconstitutional,  it  is  not 
necessary  to  find  in  the  Constitution  some  specific  inhibition 
which  has  been  disregarded,  or  some  express  command 
which  has  been  disobeyed ;  but  if  the  statute  is  contrary  to 
the  first  principles  of  the  social  compact,  it  is  void.  (Brit- 
ton  v.  Board  of  Election  Commrs.,  129  Cal.  337,  51  L.  R.  A. 
115,  61  Pac.  1115.) 

Nor  is  it  necessary  to  find  some  specific  inhibition  which, 
in  precise  language,  refers  to  the  particular  law.  (People 
V.  Lynch,  51  Cal.  15,  21  Am.  Rep.  677.) 

But  the  courts  cannot  declare  a  law  void  upon  the  ground 
that  it  is  contrary  to  the  "spirit  and  policy  of  the  Constitu- 
tion," unless  it  is  at  variance  with  some  express  or  clearly 
implied  provision  of  that  instrument.  (Cohen  v.  Wright, 
22  Cal.  293;  Pattison  v.  Board  of  Suprs.  of  Yuba  Co.,  13 
Cal.  175.) 

When  statutes  will  be  declared  void  because  conflicting  with  the 
Constitution.     See  note,  48  Am.  Dec.  269. 


Xii  INTRODUCTION. 

Conflict  with  another  statute. — The  constitutionality  of 
one  act  cannot  be  tested  by  the  provisions  of  another. 
(Reed  v.  Omnibus  R.  R.  Co.,  33  Cal.  212.) 

Motives. — The  motives  which  induce  legislative  action  are 
not  a  subject  of  judicial  inquiry,  and  a  legislative  act  can- 
not be  declared  unconstitutional  because,  in  the  opinion  of 
the  court,  it  was  or  might  have  been  the  result  of  improper 
considerations.  (People  v.  Glenn  Co.,  100  Cal.  419,  38  Am. 
St.  Rep.  305,  35  Pac.  302;  People  v.  Bigler,  5  Cal.  23.) 

The  motives  of  the  authors  of  a  statute  are  equally  imma- 
terial. (Stockton  etc.  R.  R.  Co.  v.  Common  Council  of 
Stockton,  41  Cal.  147.) 

Judicial  inquiry  into  motives  prompting  enactment  of  legislative 

ordinance.     See  note,  Ann.  Cas.   1912A,   716. 
Expediency,   justice   and   policy   of   legislation.     See   6'  R.   C.   L., 

§§  104-110,  pp.  104-111. 

Beneficial  character. — In  determining  the  constitutional- 
ity of  a  statute,  its  beneficial  character  cannot  be  consid- 
ered.    (Marsh  v.  Hanly,  111  Cal.  368,  43  Pac.  975.) 

On  the  other  hand,  in  construing  the  Constitution,  the 
courts  are  bound  to  suppose  that  any  inconveniences  in- 
volved in  the  application  of  its  provisions  were  considered 
in  its  formation,  and  accepted  as  less  intolerable  than  those 
avoided,  or  as  compensated  by  countervailing  advantages. 
(People  V.  Pendegast,  96  Cal.  289,  31  Pac.  103.) 

Impracticable  statute. — A  statute  may  also  be  declared 
void  if  it  is  impracticable.  Thus  an  act  providing  for  the 
appointment  of  three  disinterested  freeholders  in  the  city 
and  county  of  San  Francisco  to  form  an  assessment  district, 
which  might  include  the  entire  city  and  county,  and  to  as- 
sess the  lands  of  the  district  for  certain  improvements,  is 
void  as  impracticable,  since  it  would  be  impossible  to  select 
disinterested  commissioners.  (Montgomery  Avenue  Case, 
54  Cal.  579.) 

Long  acquiescence  in  validity  of  statute  as  affecting  its  consti- 
tutionality.    See  notes,  16  Ann.  Cas.  877:  Ann.  Cas.  1912A,  505. 


INTRODUCTION.  Xlii 

EFFECT  OF  UNCONSTITUTIONALITY— Separable  pro- 
visions.— The  mere  fact  that  certain  provisions  of  a  statute 
are  in  conflict  with  the  Constitution  does  not  necessarily 
render  the  entire  act  void.  Where  the  court  can  see  that 
an  act,  after  eliminating  all  unconstitutional  features,  is 
still  such  an  act  as  it  may  be  presumed  the  legislature  would 
have  passed  had  it  known  such  parts  were  void,  the  remain- 
der may  stand.  (Dwyer  v.  Parker,  115  Cal.  544,  47  Pac. 
372.) 

If  the  different  parts  are  severable  and  independent  of 
each  other,  and  the  constitutional  provisions  are  capable  of 
being  carried  into  effect  after  the  unconstitutional  part  has 
been  eliminated,  and  it  is  clear  that  it  was  the  intent  of  the 
legislature  to  enact  these  provisions  irrespective  of  the 
other,  the  unconstitutional  provisions  will  be  disregarded, 
and  the  statute  read  as  if  such  provisions  were  not  there. 
(Hale  V.  McGettigan,  114  Cal.  112,  45  Pac.  1049;  Lathrop 
V.  Mills,  19  Cal.  513;  French  v.  Teschemaker,  24  Cal.  518; 
Mills  v.  Sargent,  36  Cal.  379 ;  Christy  v.  Board  of  Supervis 
ors,  39  Cal.  3 ;  McCabe  v.  Jefferds,  122  Cal.  302,  54  Pac.  897 ; 
Rood  V.  McCargar,  49  Cal.  117 ;  Johnson  v.  Tautphaus,  127 
Cal.  605,  60  Pac.  172;  People  v.  Whyler,  41  Cal.  351;  Mc- 
Gowan  v.  McDonald,  111  Cal.  57,  52  Am.  St.  Rep.  149,  43 
Pac.  418 ;  Cahen  v.  Wells,  132  Cal.  447,  64  Pac.  699 ;  In  re 
Hallawell,  8  Cal.  App.  563,  97  Pac.  320 ;  In  re  Spencer,  149 
Cal.  396,  117  Am.  St.  Rep.  137,  9  Ann.  Cas.  1105,  86  Pac. 
896.) 

Inseparable  provisions. — Where  the  constitutional  and  un- 
constitutional provisions  of  a  statute  are  so  inseparably 
blended  together  as  to  make  it  clear  that  either  clause 
would  not  have  been  enacted  without  the  other,  the  whole 
act  is  void.  (San  Francisco  v.  Spring  Valley  Water  Works, 
48  Cal.  493 ;  Reed  v.  Omnibus  R.  R.  Co.,  33  Cal.  212 ;  Orange 
Co.  V.  Harris,  97  Cal.  600,  32  Pac.  594 ;  Wills  v.  Austin,  53 
Cal.  152;  Purdy  v.  Sinton,  56  Cal.  133;  People  v.  Perry,  79 
Cal.  105,  21  Pac.  423;  Marsh  v.  Hanly,  111  Cal.  368,  43  Pac. 
975 ;  Lathrop  v.  Mills,  19  Cal.  513 ;  Pioche  v.  Paul.  22  Cal. 
105.) 


Xiv  INTRODUCTION. 

If  a  provision  be  unconstitutional  it  cannot  be  given  effect 
in  part,  if  the  result  of  giving  it  such  partial  effect  would 
be  to  accomplish  a  purpose  which  the  law-making  power 
never  intended,  or  where  the  legislative  intent  is  doubtful. 
(Robert  v.  Police  Court,  148  Cal.  131,  82  Pac.  838.) 

Contracts  and  other  statutes. — No  repeal  by  implication 
can  result  from  a  provision  in  a  subsequent  statute,  when 
that  provision  is  itself  devoid  of  constitutional  force.  (Mc- 
Allister v.  Hamlin,  83  Cal.  361,  23  Pac.  357.) 

A  contract  entered  into  in  view  of  an  act  later  held  un- 
constitutional is  not  made  under  a  mistake  of  law.  (Cooley 
V.  Calaveras  Co.,  121  Cal.  482,  53  Pac.  1075.) 

But  a  contract  entered  into  by  a  public  board  or  officer  by 
sole  authority  of  an  unconstitutional  statute  is  void,  and  not 
subject  to  ratification.  (Phelan  v.  San  Francisco,  6  Cal. 
531.) 

The  legislature  may  refer  to  an  unconstitutional  act  to 
indicate  its  will  in  respect  to  a  constitutional  purpose. 
(People  V.  Bircham,  12  Cal.  50.) 

An  unconstitutional  act  cannot  have  the  effect  to  repeal 

prior  acts  on  the  same  subject,  though  assuming  to  do  so. 

(In  re  Clary,  149  Cal.  732,  87  Pac.  580.) 

Liability  for  acts  done  under  unconstitutional  statute.     See  note, 
64  Am.  Dec.  51. 


TABLE  OF  CASES  CITED. 


A                                                      Page 
Abbott  V.  Jack 482 

Abeel  v.  Clark 145,  244,  245,  246,  255,  256,  447,  580 

Ableman  v.  Booth 132 

Aekerman,  In  re 130,  440,  450 

Adams   v.   Town 301 

Adams  Express  Co.  v.  Ohio 549 

Addison  v.  Sauluier 143,  515,  519 

Addison's  Trial 234,  235 

Aetna  Indemnity  Co.  v.  Altadena  Mining  etc.  Co 306,  312 

Agard   V.   Shaffer 379 

Ah  Cheung,  Ex  parte 448 

Ah  Cue,  Ex  parte 214,  581 

Ahern,   Ex   parte viii,  347 

Ah  Fook,  Ex  parte 155,  581,  582 

Ah  King  v.  Police  Court 244 

Ah  Pong,  Ex  parte 454 

Ah  You,  In  re 380,  445,  446 

Alameda  v.  Cohen 162 

Alameda  County  v.  Dalton 538 

Albion  Eiver  e"!  E.  Co.  v.  Hesser 171 

Alf eritz  v.  Borgwardt 1  "5 

Alhambra,  In  re 505 

Allen  V.  Allen 176 

Allen  V.  Lelande 227 

AUgier,  In  re 322 

Alliance  Eanch  etc.  Co.  v.  Nevada  Co 534 

Alvord  V.  Collin 588 

Amador  Co.  v.  Kennedy 256,  451 

American  Coal  Co.  v.  Alleghany  County  Commissioners 560 

Anderson,  Ex  parte 210 

Anderson  v.  Byrnes 1 75 

Anderson   v.   De   Urioste 381 

Andrews,  Ex  parte 130,  131,  133,  145 

Anglo-Calif ornian  Bank  v.  Field 247,  248,  257,  492 

Angus  V.  Craven 136 

Anixter,  Ex  parte 449 

Apple  V.  Zemansky 417,  420 

Applestill  V.   Gary 439 

Areata  v.  Areata  etc.  E.  E.  Co 3S0 

Arfsten  v.  Superior  Court 444 

Argenti  v.  San  Francisco 464,  573 

Armstrong,   Ex   parte 336 

Arnold  v.  Van  Brunt 318 

Arnoult  v.  New  Orleans 252 

Arroyo  Ditch  etc.  Co.  v.   Superior  Court 325 

Arwine  v.  Board  of  Medical  Examiners 211 

Astell  v.  Phillippi 338 

Atchison,  Topeka  &  Santa  Fe  Ey.  Co.,  In  re 500 

Atchison  etc.  Ey.  Co.  v.  Los  Angeles  Co 537 

Attorney  General,  Ex  parte 301,  310 

Auguisola  V.  Arnaz 323 

(XV) 


XVi  TABLE  OF   CASES  CITED. 

B  Page 

Babcock  v.  Middleton 177 

Bacon   v.  Bacon 320 

Baggett  V.  Dunn 240,  241 

Bailey  v.  Sloan 317,  318 

Bainbridge,  Estate  of 136 

Baird,  In  re 226 

Baird  v.  Monroe 161,  257 

Baker  v.  Baker 158 

Baker  v.  Fireman's  Fund  Ins.  Co 494 

Baker  v.  O'Riordan 158 

Baker  v.  Portland 581,  582 

Baker  v.  Southern  Cal.  Ry.  Co 306 

Bakersfield  &  Fresno  Oil  Co.  v.  Kern  Co 516 

Baldwin  v.  Ellis 534 

Baldwin  v.   Miller   &  Lux 490 

Baldwin  v.  Zadig 268,  269 

Balentine  v.  Willey 226 

Ball  V.  Kenfield 584 

Ballerino  v.  Bigelow 330,  338,  339 

Banaz  v.  Smith 162,  173,  382,  457,  474,  524 

Bank  v.  Madison 492 

Bank  v.  Pacific  Coast  S.  S.  Co 483 

Bank  v.  Sperry  Flour  Co 494 

Bank  of  California  v.  San  Francisco 516 

Bank  of  Commerce  v.   Seattle 557 

Bank  of  Lemoore  v.  Fulgham 157,  284 

Bank  of  Martinez  v.  Hemme  etc.  Laud  Co 486 

Bank  of  Mendocino  v.  Chalf ant 517 

Bank  of  Sonoma  v.  Fairbanks 452,  486 

Bank  of  Ukiah  v.  Eeed 530 

Bank  of  Willows  v.  Glenn  Co 518,  528 

Bank  of  Woodland   v.  Pierce viii,  ix,  528 

Bank  of  Yolo  v.  Sperry  Flour  Co 494 

Barnes  v.  Daveek    306,  312 

Barnes  v.  Jones 244 

Barney  v.  McCreery 227,  288 

Barnitz  v.  Beverly 178 

Barrett-Hicks  Co.  v.  Glas 591 

Barry,  Ex  parte 141 

Bartley  v.  Eraser 328 

Barton  v.   Kalloek 372,  596,  605 

Bateman  v.  Superior  Court 320 

Bates  V.  Ferrier 327 

Bates  V.  Gregory 176 

Bates  V.  Porter 176 

Baum  V.  Eaphael 251 

Baxter,  In  re 433 

Beach  v.  Von  Detteu 252 

Beals  V.  Amador  Co 209,  522 

Beals  V.  Supervisors 3G9 

Beaton  v.  Eeid 574 

Beatty  v.  Gillbanks 142 

Beck,  Ex  parte 212,   444 

Becker,  Estate  of 259 

Becker  v.  Holabird 510 


TABI;E  OF  CASES  CITED.  Xvii 

Page 

Becker  v.  Superior  Court 317,  320 

Beckman  v.  Skaggs 179,  530 

Begerow,  In  re 147 

Belcher  v.  Chambers 158 

Belcher  v.  Farren 576 

Bell  V.  Crippen 318 

Bell  V.  Superior  Court 160 

Bell  V.  Wyman 5S7 

Belser  v.  Allman 162 

Bennett  v.  Beadle 590 

Benninger,  Ex  parte 451 

Bergevin  v.  Curtz 191^  192 

Beswick  v.  Churchill  Co 305 

Beveridge  v.  Lewis 169 

Bickerdiko  v.  State 257,  273,  573 

Bickerstaff,  In  re 451 

Biddle  v.  Oaks 521 

Bidwell  V.  Babcock 484 

Biencourt  v.  Parker 230    236 

Bienenfeld  v.  Fresno  etc.  Co .'  305 

Bigelow  V.  Balleriuo 165 

Bilby   V.   McKenzie 465 

Billings  V.  Hall ix,   128,    129,  179 

Billings  V.  Harvey 252 

Billings  V.  Hauver 182 

Bird,  Ex  parte 131^  133 

Bishop  V.  Oakland 596 

Bishop  V.  Superior  Court 316    326 

Blair  v.  Milwaukee  etc.  E.  E.  Co '  496 

Blanc  V.  Bowman 293    295 

Blanc  V.  Eodgers 3o0 

Blanchard  v.   Ilartwell 416     419 

Blanding  v.  Burr 210,  272',  522 

Blakeslee  v.  Hall 477 

Bledsoe's    Case 230 

Blevins  v.  Mullally 600 

Blood   V.   McCarty 456 

Bloss  V.  Lewis 143,  255,  265,  370,  375 

.Blythe  v.  Hinckley 182 

Board  V.  Nye 214,  241,  266,  274 

Board  of  Commissioners  v.  Board  of  Trustees 456    599 

Board   of  Directors   v.   Trcgea 162 

Board  of  Education  v.  Alliance  Assur.  Co 260 

Board  of  Education  v.  Board  of  Trustees 453 

Board  of  Education  v.  Fowler 359 

Board  of  Education  v.  Hyatt 357 

Board  of  Education  v.  McMahan 221 

Board  of  Library  Trustees  v.  Supervisors 212 

Board  of  Eailroad  Commrs.  v.  Market  St.  Ey.  Co 504 

Board  of  Supervisors  v.  Blacker 226    227 

Boca  Mill  Co.,  The,  v.   Curry 477    488 

Boca  etc.  E.  E.  Co.  v.  Sierra  Valleys  E.  E.  Co 165,  469',  496 

Boedefeld    v.    Eeed 325 

Boggs  V.  Ganeard 175,  257,  575 

Bohannon  v.  Board  of  Medical  Examiners 146 

Bohen,  Ex  parte 449 


XVIU  TABLE  OF  CASES  CITED. 

Page 

Bohn  V.  Pacific  Electric  Ey.  Co 136 

Bolton  V.  Landers 304 

Bond  V.  Karma-Ajax  Consol.  Miii.  Co 495 

Bonner  v.   Besterling 613 

Boorman   v.    Santa   Barbara 158 

Booth   V.  MeGuinness 221 

Borello  v.  Superior  Court 139 

Borland  v.  Nevada  Bank 482 

Boston  Min.  etc.   Co.,  In  re 244 

Boswell,   Ex  parte 442 

Bottle  Mining  and  Milling  Co.  v.  Kern 307 

Bourland  v.  Hildreth vii,  xi,  193,   196 

Bourn  v.  Hart x,  272,  273 

Bowen,  In  re 323,   324 

Boyd  V.  Sontiiern  Cal.  Ey.  Co 326 

Boyer  v.  Boyer 558,  560 

Boys'  and  Girls'  Aid  Soc.  v.  Eeis 144,  241,  290,  360,  456 

Bradford  v.  Board  of  Education 249,  258 

Bradford  v.  San  Francisco 465 

Bradley   v.    Clark 585 

Bradley   v.   Illinois 558 

Bradley  v.  Kent 318 

Brady  v.  King 161,  453 

Brady  v.  Times-Mirror  Co '  494 

Brandenstein  v.  Hoke 162 

Braun,  Ex  parte 3S3 

Brazell  v.  Zeigler 221 

Brenham  v.  Story 129,  167 

Bresee  v.  Los  Angeles  Traction  Co 346 

Breslin,  In   re 321 

Brewster  v.  Ludekins 347 

Brickell  Co.,  John,  v.  Sutro 528 

Britton  v.  Board  of  Election  Coinmrs xi,  184,  187,   195 

Brock   V.   Bruce 326 

Brodie  v.  Campbell 332,  585 

Brookes  v.  City  of  Oakland 155,  161,  467 

Brooks  V.   Fischer 209,   416,   418 

Brooks  V.  Hyde 142,  143,   145 

Brooks  V.  Union  Trust  etc.  Co 302 

Brown  v.  Board  of  Supervisors 165 

Brown  v.  Campbell 332 

Brown    v.    Maryland 553 

Brown  v.  Merrill 481,  483 

Brown  v.  Nash 22S 

Brown    v.    Eice 325 

Brown  v.  Visalia 357 

Browne   v.    Dexter 192 

Brown's    Case 236 

Bruch  V.  Colombet 143,  263,  355 

Bruniagin    v.    Tillingliast 519 

Brummagim  v.  Spencer 338 

Buck  v.  Canty ISO,  252 

Buck  v.  Eureka 437,  466 

Builders'  Supply  Depot   v.  O'Connor 130,  259 

Bulger,  In  re 585 

Bunkers,  In  re x,   199,   251,  278,  478 


TABLE  OF  CASES  CITED.  xix 

Page 
Bnrbridge  v.  Lemmert 530 

Burgoyne  v.  Board  of  Supervisors 198,  199,  200,  300 

Burke,  Ex  parte 133,  145,  25-t 

Burke,  In  re 14G,  206 

Burke  v.  Board  of  Trustees 384,  418 

Burke  v.   Maze 303 

Burleigh,    In    re 235 

Burnett  v.  Sacramento 165,  524 

Burns  v.  Superior  Court 201,  290 

Burr  V.   Carbondale 430 

Burton,  Estate  of 322 

Burton,    In    re 321 

Bush  V.  Lindsey 322 

Bush  V.  Nye ..." 333,  335 

Buswcll  V.  Supervisors 534 

Butte  Countv  v.  Merrill 250,  275 

Byrne  v.  Drain 381,  382,  383 

C 

Cahen   v.   Wells xiii,  593 

GahiU,   Estate   of 309 

Cahill,    Ex    parte 150 

Cake  V.  City  of  Los  Angeles 187 

Calaveras  v.   Poe 439 

Caldwell  v.  Center 344 

California  Fruit  etc.  Co.  v.  Superior  Court 329,  606 

California  Loan   etc.  Co.  v.  Weis 528 

California  &  Northern  Ry.  v.  State 586 

California  Reduction  Co.  v.  Sanitary  Reduction  Works 449 

California  Shipping  Co.  v.  San  Francisco 536 

California  Southern  R.  R.   Co.  v.   Kimball 171 

California  State  Bank  v.  Webber 530 

California  State  Tel.  Co.  v.  Alta  Tel.  Co 184,  477,  478 

California  Tiona  Co.  v.  Wilkinson 490 

California  etc.  R.  R.  Co.  v.  Mecartney 527 

Calistoga  El.  Co.  v.  Napa  Valley  El.  Co 510 

Cames  Co.,  F.,  v.  Southern  Pac.  Co 499 

Campbell,  Estate  of 231,  256 

Campbell,  Ex  parte 442,  447 

Campbell  v.  Board  of  Supervisors 592 

Campbell  v.  Free    589 

Campe  v.   Lassen 316 

Camron  v.  Kenfield 310,  328 

Canadian  etc.  Trust  Co.  v.  Boas 529 

Canfield  v.  Los  Angeles  County 516 

Carey  v.  Tice 574 

Cariaga  v.  Dryden 310,  338 

Carpenter  v.  Furrey 249,  256 

Carrillo,  In  re 380 

Carson  v.  Central  R.  R.  Co 165 

Carter,  In  re 201 

Carter  v.  Lothian 316 

Carter  v.  Sujjerior  Court 290 

Gary  v.  Blodgett 257,  384 

Case  Plow  Works  v.  Montgomcrv 484 


XX  TABLE  OF   CASES  CITED. 

Page 
Cashman  v.  Root • 268 

Oassidy  v.  Sullivan 136,  309 

Castro  V.  Castro 321 

Castio  V.  Richardson    323 

Caulfield  v.  Stevens 330,  338 

Central  Irr.  Dist.,  In  re 103 

Central  Irr.  Dist.  v.  De  Lappe 166 

Central  Pac.  R.  R.  Co.  v.  Board  of  Equalization 516,  529,  534,  535 

Central  Pac.  R.  R.  Co.  v.  People 

184,  255,  256,  261,  262,  263,  477,  518,  519,  537,  548 

Central  etc.  R.  Co.  v.  State 251 

Cerini  v.  De  Long 192,  306,  467 

Chambers  v.  Satterlee ; 162,  173,  474,  524 

Chapman  v.  Ames 162 

Chapman  v.  Morris 177 

Chapman  v.  State 272,  273 

Chapman  v.  Stoneman 364 

Chapman  v.  Toy  Long   581 

Chapman  v.  Zobelein 158,  165,  515 

Charge  to  Grand  Jury 183 

Chase  v.  Trout 156 

Cheyney,  Ex  parte 446 

Chicago  etc.  R.  R.  Co.  v.  Haggerty 496 

Chico  High  School  Board  v.  Board  of  Supervisors 357 

Chinn  v.  Gunn 375 

Chinn  v.  Superior  Court 326 

Chin  Yan,  Ex  parte 254,  260,  445 

Chipman  v.  Bowman 291 

Chisholm  v.  Georgia 217,  222 

Chrisman  v.  Anderson 227 

Christensen,  Ex  parte 443,  447 

Christian  v.  Superior  Court 318 

Christy  v.  Supervisors xiii,  372 

Church  V.  Colgan , 333 

Cimpher  v.  Oakland 570 

City  Nat.  Bank  v.  Paducah 559 

City  Street  Imp.  Co.  v.  Kroh 130,  182 

Clancy,  Ex  parte 143 

Clark,  In  re 347 

Clark  V.  Brown 330 

Clark  V.  Los  Angeles 187,  385,  472 

Clarke,  Ex  parte 153,  154 

Clarke  v.  Perry 321 

Clarke  v.  Reis 155 

Clark's   Case 182 

Clary,   In   re xiv 

Clement's  Case 227 

Clouse  v.  San  Diego 385 

Clunie  v.  Siebe 521,  533 

Clute  V.  Turner 146,  169,  258 

Coates  V.  Atchison  etc.  Ry.  Co 165 

Coburn,  In  re 245,  249,  251,  312 

Cody  V.  Murphey 142,  255,  264 

Cofifey  V.  Superior  Court 233,  384,  385 

Coggins  V.  Sacramento 596 

Cohen,  Ex  parte 154 


TABLE  OF  CASES  CITED.  Xxi 

Page 

Cohen  v.  Alameda 162,  173,  261,  474,  524 

Cohen  v.  Melrose 311 

Cohen  v.  Wright xi,   129,   155,   175,  179,   350,  584 

Cohens  v.  Virginia 132 

Cohn  V.  Central  Pac.  R.  E.  Co 494 

Colegrove  Water  Co.  v.  Hollywood 471 

Collins  V.  Johnston 333,  334 

Collins  V.  Lean 155,  183^  267 

Collins  V,  Superior  Court 302 

Colton  V.  Eossi 164,  170 

Colusa  Co.  V.  Glenn  Co 369,  518,  533 

Colusa  Co.  V.  Welch 278 

Commercial  Nat.  Bank  v.  Chambers 560 

Commissioners  v.  Trustees 456,  599 

Common  Council  v.  Harrington 221 

Commonwealth  v.  Addison 235 

Commonwealth  v.  Ahl 351 

Commonwealth  v.  Hitchman 351 

Commonwealth  v.  Pyle 236 

Commonwealth  v.  Shaver 588 

Conant  v.  Conant 304,  309 

Condict  V.  Police  Court 458 

Coniif  V.  Hastings 172 

Conlin  v.  Supervisors x,  262,  264,  266,  272,  273,  456 

Conner,  In  re 330 

Conniff  v.  San  Francisco 169 

Consolidated  Channel  Co.  v.  Central  Pac.  E.  E.  Co 166,  167 

Contra  Costa  E.  E.  Co.  v.  Moss 166,  167 

Contra  Costa  W.  Co.  v.  Breed 567 

Contra  Costa  W.  Co.  v.  Oakland 563 

Converse  v.  United  States 236 

Cook  V.  Board  etc.  of  Middlesex 351 

Cook  V.  Coekins 178 

Cook  V.  Pennsylvania   548 

Cook  V.  W.  S.  Eay  Mfg.  Co 495 

(Jooley  V.  Calaveras  Co xiv 

Coombs,  In  re 442,  444 

Copertini   v.   Oppermann 326 

Coppinger  v.   Eice 321 

Corcoran  v.  Benicia 169 

Cornett  v.  Bishop 326 

Corralitos  etc.  Canning  Co.,  In  re 334 

Costa  V.  Superior  Court 321 

Cottle  v.  Spitzer 516 

Coulfield  v.  Hudson 300 

Courtwright  v.  Bear  Eiver  etc.  Min.  Co 300,  320 

Cox,  Ex  parte 212 

Coxe  v.  McClenaohan 229 

Coyne  v.  Eennie 419 

Cozzens  v.  North  Fork  Ditch  Co 564 

Craig  v.  Boone 459 

Craig  V.  Superior  Court 594 

Crall  V.  Poso  Irr.  Dist 166 

Crandall  v.  Blen 304 

Crane,  In  re 174 

Crawford  v.  Dunbar 236,  593 


Xxii  TABLE  OF   CASES  CITED. 

Page 

Creighton  v.  Manson "^72,  523,  525 

Creigliton  v.  Pragg I'S?  ^^^ 

Creighton  v.  San  Fiauciseo -^2 

Crocker  v.  Coiirey -^l-  290 

Crocker  v.  Scott -516,  519 

Crockett  v.  Mathews l-i'^j  438 

Croly  V.  Sacramento ^•-  -'^'l 

Crosby  v.  Lyon 354,  o_0 

Grossman  v.  Vivienda  Water  Co loO 

Crow  V.  San  Joaquin  etc.  Irr.  Co 563,  564 

Crowley  v.  Christensen 4"* ' 

Crowley  v.  Freud 387,  433 

Crutcher  v.  Kentucky ^^1 

Cullen  V.  Glendora  Water  Co 260,  330 

Cullen  V.  Langridge 3-6 

Curtis,  In  re ^35,  311 

Curtis  V.  Eichards f ^^ 


Curtis  V.  Sacramento. 


341 


Daggett  V.  Colgan .•.•.■•■.-.. 241 

Dailey  v.  Superior  Court ...-.■. 141 

Dalton  V.  Lelande 41^ 

Daly,  In  re 448 

Danielson  v.  Yoakum 482 

Darcy  v.  Mayor 255,  379,  380,  437 

Dashiell  v.  Slingerland 304,  317 

Dassler,  In  re ^^-^ 

Daum  V.  Southern  Pac.  Co 510 

Davenport  v.  Los  Angeles 193 

Davenport  Nat.  Bank  v.  Davenport  Bd.  of  Equalization 557 

Davey  v.  Mulroy 306,  312 

David  V.  Portland  etc.  Co 252 

Davidson  v.  Dallas ^^^ 

Davidson  v.  Eankin 483 

Davidson  v.  Von  Detten 255 

Davies  v.  Los  Angeles 159,  246,  254,  380,  456 

Davis,  Estate  of 158,  301 

Davis  v.  Hearst 346 

Davis  V.  Superior  Court ix 

Davis  V.  Whidden 233 

Daw  V.  Niles 530 

Day  V.   Jones 193,  196 

De'  Baker  v.  Southern  Cal.  Ry.  Co 168,  ]69,  446 

Deck  V.  Gerke 323,  324 

De  Jarnatt  v.  Marquez 318,  330,  338 

De  La  Montanya  v.   De   La  Montanya 158 

Delaney,  Ex  parte ■_ 447 

Denman  v.  Broderick 258,  378,  379 

Denninger  v.  Eecorder's  Court .  .211,  276,  446,  469 

Dennis   v.   Superior    Court ^ 483 

Denton  v.  Vann 210,  440 

Dentzel  v.  Waldie :..:.. 178,  179 

De  Puy,  Ex  parte 351 

Derby  v.  Stevens 317,  318,  483 


TABLE  OF  CASES  CITED.  XXlll 

Page 
Desanta,  In  re 443 

Desmond  v.  Dunn 254,  258,  379,  381,  387,  599 

Deuprez  v.  Deu]>rez 324 

Devlin  v.  Anderson 196 

Dewar   v.   Ruiz 576 

Dewey  v.  Lambier 129 

Dewing  Co.  v.  Thompson 306,   319 

De  Witt  V.  Hays 514 

De  Witt  V.  San  Francisco 244 

Deyoe  v.  Superior  Court 145,  250,  256 

Dickey,  Ex  parte 131 

Dickey  v.   Hurlburt 200,   211 

Diehl,  In  re 384 

Diepenbrock  v.  Superior  Court 185,  317 

Dietrich,  Ex  parte 450 

Dinan  v.  Superior  Court 384,  418,  594 

Doane  v.  Weil 250 

Dobbins  v.  Commrs.  of  Erie  Co 132 

Dobbins  v.  Los  Angeles 448,  450 

Dodge,  Matter  of   433 

Dodge   V.   Nevada   Nat.   Bank 532 

Dodge  V.  San  Francisco 433 

Doherty  v.  Thayer 306,  339 

Dolan,  Ex  parte 416,   433 

Dolan    V.    Barnard 252 

Doland  V.  Clark 466 

Doland  v.  Mooney 528 

Dolbear  v.  Foreign  Mines   Dev.  Co 483 

Donahue,   Ex   parte 329 

Donahue  v.  Graham 475,  600 

Donlon   v.  Je wett 251 

Dooley  v.  People's  Water  Co 510 

Dorn  v.  Howe 606 

Dorsey  v.  Barry 326 

Dougherty  v.  Austin 143,  212,  374,  437 

Dougherty  v.  Bartlett 322,  323 

Dow  v.  Gould  &  Curry  etc.  Min.  Co 586,  587 

Dow  v.  Oroville 346 

Doyle   V.   Seawell 304 

Dressier,  Ex  parte 135 

Drexel,  Ex  parte 131,  213,   267 

Drinkhouse   v.   Merritt 321 

Duke  v.   Huntington 4S4 

Dungan  v.  Clark 304,  31S 

Dunne   v.   Mastick ISO 

Dun]  hy   v.   Guindon 304 

Durgin  v.  Neal 29J: 

Dusv  V.  Helm 347 

Dwyer  v.  Parker xiii,  144,  186,  264,  373 

E 

Eachus  V.  Los  Angeles  etc.  Ey.  Co 165,  168 

Eaker  v.  Brvant . 146,   186 

Earle  v.  Board  of  Education 251,  263,  265,  355 

Eaton  v.  Brown 143 


XXIV  TABLE  OF   CASES  CITED. 

Page 

Eekerson  v.  Des  Moines 220,  222 

Economic  Gas  Co.  v.  Los  Angeles 473 

Eddy  V.  Houghton 495 

Ede  V.  Cogswell 475 

Ede  V.  Knight 1 76,  475 

Edsall  V.  Short 305,   337 

Edson  V.  Southern  Pac.  Co 498,  499,  504 

Edward's  Case 230 

Edwards  v.  San  Jose  etc.  Publishing  See 140 

Elam,  Ex  parte 129,  146,  155,  157,  185,  266 

El  Dorado  Co.  v.  Meiss 375,  454 

Elder  v.  Garey 439 

Elder  v.  McDougald 433 

Elizalde  v.  Murphy 324 

Elliott,  Estate  of 249 

Ellis,  Ex  parte 133 

Ellsworth,  In  re 212 

Eltzroth  V.  Evan 337 

Emery  v.  Bradford 162,  173,  474,  524 

Emery   v.    Eeed ix 

Emery  v.  San  Francisco  Gas  Co 162,  165,  173,  474,  515,  524 

Engel  V.  Ehret 146,  258 

Erie  Eailroad  v.  Pennsylvania 555 

Erving  v.  Napa  Valley  Brewing  Co 305 

Escondido  v.  Escondido  Lumber  etc.  Co 454,  532 

Escondido  Pligh  School  Dist.  v.  Escondido  Seminary 265 

Escondido  Mut.  Water  Co.  v.  Escondido 565 

Evansville  Nat.  Bank  v.   Britton 559 

Exchange  Nat.  Bank  v.  Miller 560 

Exline  V.  Smith 137,  200 


Fair,  Estate  of 516,  520,  521,  528 

Fairbanks  v.  Lampkin 307 

Fairchild  v.  Doten 307 

Fallbrook  Irr.  Dist.  v.  Bradley 163,  167,  378,  456 

Fanning  v.  Schammel 453 

Fargo  V.  Michigan 553,  554 

Fargo  V.   Stevens 552 

Farmer   v.   Behmer 380,    384,   443 

Farmers'  etc.  Bank  v.  Board  of  Equalization 534 

Farmers'  etc.  Union  v.  Thresher 310,  328 

Farnum   v.    Warner 256 

Farrell  v.  Police  Commrs 593 

Farrell  v.  Portland 221 

Farrell  v.  Sacramento 263,  593 

Fatjo  v.  Pfister 249,  453,  515 

Faxon  v.  All  Persons 327 

Faymonville    v.   McCollough 483 

Feillett   V.    Engler 300 

Felchlin,  Ex  parte 446,  450,  595 

Fellows  V.  Los  Angeles 562 

Fenton,  Ex  parte 149,  150 

Ferguson  v.  Sherman 481 


TABLE  OF  CASES  CITED.  XXV 

Page 

Ferrasci  v.  Empire  Water  Co 510 

Ferris    v.    Coover ix 

Fife,  In  re 137 

Finley,  In  re x,  131,  156,  255 

Fire  etc.   Commrg.,  In  re 352 

First  Nat.  Bank  v.  Chapman 556 

First  Nat.  Bank  v.  Chehalis  County 556,  560 

First  Nat.  Bank  v.  Commonwealth 559 

First  Nat.  Bank  v.  San  Francisco 519,  558 

First  Nat.  Bank  of  Garnett  v.  Ayers 556 

First  Nat.  Bank  of  Omaha  v.  Douglas  County 559 

First  Nat.  Bank  of  Wilmington  v.  Herbert 556 

Fisher  v.  Police  Court 259 

Fisk  V.  His  Creditors 307 

Fiske,  Ex  parte 211,  447 

Fitch  V.  Supervisors 347,  567 

Fitzgerald  v.  Urton 300 

Flaherty,  In  re 446 

Flavell's  Case    351 

Fleming  v.  Hanee 291,  372,  385,  432 

Fletcher  v.  Prather 251 

Flint  V.  Wilson 325 

Floyd  V.  Blanding 176,  179 

Foley  V.  Foley 156 

Foltz  V.  Cogswell 278 

Ford,   In   re 147 

Ford  V.   Smith 337 

Ford  V.   Superior  Court 147 

Forestier  v.  Johnson 569 

Foster  v.  Police  Commrs 180,  255,  441,  446 

Fowler  v.  Peirce x,  233 

Fox  V.  Hale  &  Norcross  etc.  Min.  Co 485 

Fox  V.  Western  Pac.  E.  E.  Co 170 

Fragley  v.  Phelan 255,  381,  383,  384 

Franeais  v.  Somps 247 

Frankel  v.  Deidesheimer 294 

Franklin  v.  State  Board  of  Examiners 572 

Fraser  v.  Alexander 599 

Frazer,   Ex    parte 478 

Froeman  v.  Barnum 261,  370 

Freeman  v.  Seitz    317 

Freman  v.  Marshall 147 

French  v.  Davidson 145,  246,  256 

French  v.  Senate 156,  ISl,  224,  228,  229,  278 

French  v.  Teschemaker viii,  xi,  xiii,  144,  480,  481 

Fresno  Canal  etc.  Co.  v.  McKenzie 466 

Fresno  Canal  etc.  Co.  v.  Park 568 

Fresno  Nat.  Bank  v.  Superior  Court 186,  327,  493 

Freud,  Estate  of 129,  323 

Frick  v.  Los  Angeles 382,  416 

Fritts  V.   Camp 328 

Fritz  V.  San  Francisco 384 

Fuller   V.  Fuller 133 

Fulton  v.  Brannan 575 

Funkenstein   v.   Superior   Court 183 


XXV]  TABLE  OP   CASES  CITED. 

G                                                        Pajje 
Gaffnev  v.  Gougli 172 

Gafford   v.  Bush 329 

Gale  V.  Tuolumne  County  Water  Co 306,  602 

Galena  etc.  E.  K.  Co.  v.  Appleby 496 

Galena  etc.  E.  E.  Co.  v.  Loomis 496 

Galindo  v.   Walter 211 

Gallagher,  Estate  of 574 

Galland  v.  Lewis 178,  179 

Gardiner  v.  Bank  of  Napa 480,  486,  600 

Gardiner  v.  Eoyer 481 

Garms  v.  Jensen 530 

Garnett  v.  Brooks 433 

Garniss  v.  Superior  Court 318 

Garretson  v.  Supervisors 535 

Gates  V.  Green 302 

Gavin  v.  Pacific  Coast  M.  F.  Union 491,  492 

Gavitt  V.  Mohr 576 

Gay,  Estate  of 587 

Gee  v.  Moore 574 

General  Conference  v.  Berkey 492 

George  v.  Eansom 587 

Gerino,  Ex  parte 145,   185,   585 

German  Nat.   Bank  v.   Kimball 560 

German  Sav.  etc.  Soc.  v.  Eamish 158,  162,  173,  382 

Gerniania  Bldg.  etc.  Assn.  v.  Wagner 590,  599 

Germania  Trust  Co.  v.  San  Francisco 520,  521,  528 

Geyer  v.  Irwin 229 

Giambonini,  Ex  parte 291,  336,  340,  379 

Gibbs  V.  Bartlett 417 

Gibbs  V.  Tally 129 

Gieseke  v.   San  Joaquin   County 247 

Gillan  v.  Hutchinson 164,  167 

Gillis  V.  Barnett 605 

Gilman  v.   Contra   Costa   County 366 

Gilman  v.  McClatehy 140 

Gilmer  v.  Lime  Point 166,  170,  200 

Glendale  &  Eagle  Eock  Ey.  Co.,  In  re 445 

Goldberg  v.  Thompson 576 

Goldsmith  v.  San  Francisco 465 

Goldtree  v.  San  Diego 586,  590 

Good  V.  Common  Council  of  San  Diego 612 

Goodman   v.   Superior   Court 136 

Gordon  v.  Eoss 304 

Gorman   v.  Pacific  E.   Co 496 

Gorton  v.  Ferdinando 327 

Goss  V.  Steiger  Terra  Cotta  etc.  Works 345 

Gow,  In  re 133 

Graciosa  Oil  Co.  v.  Santa  Barbara  Co 518 

Graham  v.  Fresno 337,  432,  433,  434 

Graham  v.  Roberts 221,  613 

Grand  Grove  etc.  v.  Garibaldi  Grove 159 

Grangers'  Bank  v.  San  Francisco 294 

Grannis  v.  Superior  Court 324 

Green,  Ex  parte 445,  446 

Green  v.  Fresno  Co 373,   374 

Green  v.  State   286,  352 


TABLE  OF  CASES  CITED.  XXVll 

Page 

Green  v.  Superior    Court 329 

Green  v.  Swift    169,  214 

Greenbaura  v.  Martinez 317 

Greenberg  \ .  Western  Turf  Assn 131,  448 

Greencastle  etc.  Co.  v.  State 252 

Greenwood  v.  Morrison 1 62 

Gregg  V.   Bostwick 574 

Gregory  v.  Diggs 318 

Gridley  v.  Fellows 258 

Griffin  etc.  Co.  v.  Magnolia  etc.  Fruit  Cannery  Co 494 

Griggs  V.  Clark 322 

Grimes   v.   Norris 321 

Grimm  v.  O'Counell 533 

Griswold  v.  Pieratt 317 

Grocers'  etc.  Union  v.  Kern  etc.  Co 327,  494 

Grogan  v.  Euckle 295 

Grogan  v.  San  Francisco 175 

Grosbois,  In  re 138 

Gross  V.   Kenfield 436,  599 

Gross  V.  Superior  Court 329 

Grumbach  v.  Leiande ]  46,   185,  448 

Guerrero,  In  re 377,  451,  454 

Gunter  v.  Geary 164 

Gurnee  v.  Maloney 323 

Guruee  v.  Superior  Court vii,  316,  602 

Gutierrez,  Ex  parte 181 

Guy  V.  Hermanee 198 

Guy  V.   Washburn 535 

Gu'zzi  V.  McAllister 449 


H 

Haas,  In  re 322 

Hadley  v.  Dague 162,  173,  474,  524 

Hagar  v.  Supervisors 209,  524 

Haight  V.  Gay 300,  301 

Haines  v.  City  of  Forest  Grove 221 

Hale  V.  McGettigan xiii,   224,  231,   372,  375 

Hall  V.  Rice 320 

Hallawell.   In   re xiii,    135,    246,   249,  448 

Halsted,  Ex  parte 142,  255,  374.  380 

Hammond  v.  Ocean  Shore  Dev.  Co 495 

Hampton   v.   Christensen 590 

Hancock  v.  Board  of  Education 383 

Hancock   v.   Burton 328 

Hanford  v.  Hanford  Gas  etc.  Co 474 

Hang  Kie,  In  re 145,  1 84,  447 

Hannah  v.  Canty 327 

Harbor  Commrs.  v.   Redwood  Co 212 

Hardenburg  v.  Kidd 199,  200 

Harker.  Ex  parte 302 

Harmon  v.  Page 481,  484 

Harney  v.  Benson 162 

Harpcnding  v.   Haight 279 

Harper  v.  Freelon .325,  32  1 

Harper  v.  Rowe 161,  53'3 


XXVm  TABLE  OF  CASES  CITED. 

Page 
Harralson  v.  Barrett 530 

Harrelson  v.  Tomich 530 

Harrier  v.  Bassf ord 15& 

Harris  v.  Supervisors 244 

Harrison  v.  Colgan 302,  343 

Harrison  v.  Horton 464 

Harrison  v.  Roberts 419 

Harrold   v.   Barnum 438 

Harron  v.  Harron 307,  308 

Hart  V.  Carnall-Hopkins  Co 327,  330,  338,  339 

Hart  V.  Gaven    525 

Hart  V.  Jordan    195 

Harter  v.  Barkley 448 

Hartford  Fire  Ins.   Co.  v.   Jordan 546 

Hartman,  Ex  parte 149 

Haskell,  Ex  parte 244,  450 

Hastings  v.  San  Francisco 366 

Hatch  V.  Stoneman 578 

Hatfield  v.  People's  Water  Co 562 

Hatzfield  v.  Gulden 351 

Havemeyer  v.   Superior   Court 159 

Haverstick   v.   Trudel 322 

Hay  V.  Hill 179,  528 

Hayden,  Ex  parte 131,  213,  581 

Hayes,  Ex  parte 446,  595 

Haynes  v.  Tredway 178 

Heckman  v.  Swett 213 

Heilbron,  Ex  parte 447 

Heilbron  v.  Superior  Court 170 

Heinlen  v.  Phillips 305 

Heinlen  v.  Sullivan 606 

Heller   v.   People 251 

Hellman  v.  Los  Angeles 213 

Hellman  v.  Shoulters 142,  244,  246,  251,  261 

Helm,  Ex  parte 381,  383 

Henigan  v.  Ervin 304,  307 

Henley,  In   re 135 

Henry  v.  Garden  City  Bank  etc.  Co 529 

Hepburn  v.  School  Directors 559,  560 

Hercules  Oil  etc.  Co.  v.  Hocknell 485 

Hercules  Water  Co.  v.  Fernandez 164 

Herd  v.   Tuohy 328 

Herrlieh  v.  McDonald 295 

Hevren  v.  Eeed 175 

Hewitt  V.  Board  of  Medical  Examiners 211 

Hewitt  V.  Dean 530 

Heydenf eldt.  In  re 323 

Heydenf eldt  v.  Superior  Court 321    323 

Heylman,  Ex  parte 450 

Hey  Sing  Teek  v.  Anderson 159 

Hibernia  etc.  Soe.  v.  San  Francisco 517 

Hickman  v.  O'Neal 291 

Hicks  V.  Bell 300 

Hicks  V.  Murray 161 

Higgins   V,   Cole V. . .   593 


TABLE  OP  CASES  CITED.  xxix 

Pago 

Higgins   V.  Prater viii 

Higgins  V.  San  Diego 464,  466 

Higgins  V.  San  Diego  Water  Co 201,  273,  465 

High  V.  Bank  of  Commerce 159 

High  V.  Shoemaker 156,  515,  518 

Hilborn  v.  Nye 243 

Hildreth  v.  Montecito  C.  W.  Co 567 

Hill  V.  Finigan 346 

Hill  V.  Newman 339 

Hills  V.  Nat.  Albany  Exchange  Bank 558 

Hilzinger  v.  Gillman 221,   613 

Hinckley,   Estate   of 587 

Hiner  v.  Hiner 306,  312 

Hoban    v.    Eyan 339 

Hobart  v.  Supervisors 127,  209,  211 

Hobart  v.   Tillson 310 

Hodges,  Ex  parte 440,  449 

Hoffman  v.  Superior  Court 160,  200 

Hohn  V.  Pauly 187,  574 

Ho  Kow  V.  Nunan 582 

Holdf orth,  In  re 174 

Holley  V.  Orange  Co 198,  212,  523 

Holman   v.   Taylor 326 

Home  Tel.  &  Tel.  Co.  v.  Los  Angeles 276,  383 

Hong  Shen,  Ex  parte 151,  443 

Hopkins  v.  Cheeseman 304 

Hopkins  v.  Duluth 220 

Hornef ,  Ex  parte 248 

Hornung  v.  McCarthy 168 

Houghton,   Appeal  of 325 

Houghton  V.  Austin 161,  212,  522,  533 

Houston  V.  Williams 294 

Howland.  v.  Board  of  Supervisors 466 

Hudson,  Estate  of 322 

Huffman  v.  Hall 252 

Hughes,  In  re 328 

Hughes  v.  Ewing 452,  522 

Hughes  v.  Los  Angeles 546 

Hulbert  v.  California  etc.  Cement  Co 311 

Hull  v.  Superior  Court 374 

Humbert  v.  Dunn 240,  241 

Humboldt  County  v.  Stern 437 

Humiston  v.  Shaffer 438 

Hung  Sin,  Ex  parte 134 

Hunsaker  v.  Borden 177 

Hunt  V.  Manning 245 

Hunt  V.  Ward 483 

Huntington  v.  Curry 537 

Hurl,  Ex  parte 523 

Hurtado  v.   California 139 

Hutson  V.  Woodbridge  Protection  Dist 163 

Hyatt  V.  Allen viii,  309,  521,  599 

Hyde  v.  Redding 136 

Hyman  v.  Coleman 318,  483 


XXX  TABLE  OP   CASES  CITED. 

I  Page 

Imperial  Water  Co.  v.  Supervisors 161,  326 

Imperial  Water  Co.  No.  5  v.  Holabird 563 

Indiana  Eailroad  Cases 519,  5.50 

Indianapolis  etc.  R.  E.  Co.  v.  Kereheval 496 

Ingraham  v.  Weidler 136 

Ingram  v.  Colgan 213,  241,  273 

Initiative  Petition  No.  2,  In  re 221 

Initiative   State  Question,  In  re 221 

Iron  Mountain  Co.  v.  Haight 233 

Isola  V.  Weber viii 

Ivory  V.  Brown 339 

J 

Jackson,  Ex  parte 185,  256,  453 

Jackson  v.  Baehr 249,  256,  383 

Jackson   v.   Whartenby 317 

Jacobs  V.   Supervisors 565,   567 

Jacobs    V.   Walker 576 

Jenkins  v.  Neff 557 

Jenks  V.  Oakland 596 

Jennings  v.  Le  Breton 162,  173,  474,  524 

Jennings  v.  Le  Roy 169,  249,  251 

Jentzsch,  Ex  parte 131,  184,  213,  260,  266 

Jessup,  In  re 294,  301 

John,  Ex  parte 440 

Johnson,   Ex  parte 447,   478 

Johnson,  In  re 337,  433 

Johnson  v.  Bank  of  Lake 482 

Johnson  v.  Goodyear  Min.  Co 478 

Johnson  v.  Gunn    375 

Johnson  v.  Harrison    251 

Johnson  v.  Langdon    491 

Johnson  v.  San   Diego 380 

Johnson  v.  Simonton    447 

Johnson  v.  Squires    575 

Johnson  v.  Tautphaus xiii 

Johnson  v.  Taylor   157 

Johnson  v.  Williams    467 

Johnston,   In   re 471 

Jones  V.  Falvella    247 

Jones  V,  Galena    496 

Jones  V.  Goldtree  Bros.   Co 483 

Jones  V.  Justice's   Court 337 

Jones  V.  Morgan 275 

Jordan,  Ex  parte 259,   261,   264,   265 

Junqua,  In  re 441,  448 

K 

Kadderly  v.  City  of  Portland 200,  216,  222,  248 

Kahn  v.  Sutro 142,  259,  291,  336,  337,  354,  366,  387,  601,  605,  606 

Kaiser  Laud  &  Fruit  Co.  v.  Curry 142,  200,  248,  493 

Kalloch  V.   Superior  Court 138,   155,   156 

Kansas  etc.  Ry.  Co.  v.  Mower 496 

Karlson,  Ex  parte 135 


TABLE  OF  CASES  CITED.  XXxi 

Page 

Katz  V.  Fitzgerald 195 

Kauff man  v.  Foster 587 

Kavanagh  v.  Board  of  Police  Pension  Fund  Commrs 155 

Keech  v.  Joplin 306,  310,  312 

Keeney,    Ex    parte 387,  442 

Keller  v.  Franklin 324 

Kellogg  V.  Howes 590 

Kelly  V.  Luning 453 

Kendrick  v.  Diamond  etc.  Min.  Co 494 

Kennedy  v.  Board  of  Education 380 

Kennedy  v.   California  Sav.   Bank 483 

Kennedy  v.  Miller 355,  381,  416 

Kenneke,  Ex  parte 129,  145 

Kent  V.  Williams 328 

Keppehnann,  Ex  parte 472 

Kerckhoff-Cuzner  Mill  etc.  Co.  v.  Olmstead 179 

Kern  Co.  v.  Fay 374 

Kern   River  Co.  v.  Los   Angeles 538 

Kern  Valley  Water  Co.  v.  Kern  Co 536 

Kerrigan   v.   Market   Street   Ry.   Co 345 

Kcybers  v.  McComber 337 

Kiernan  v.  City  of  Portland 216 

Kiernan  v.  Swan 374 

Kimberly,  Estate   of 322 

King,  Ex  parte 146 

King  V.  Chase 324 

King  V.  Kutner-Goldstein  Co 338 

King  V.  Pauly    161 

Kingsbury   v.   Nye 288,  578 

Kings  County  v.  Johnson 247,  262,  328 

Kings  Co.  V.  Tulare  Co 368 

Kirkwood  v.  Soto 437 

Kitts  V.  Superior  Court 139 

Knapp,   Ex   parte 449,  450 

Knight  V.  Martin 186,  373,  375 

Knowles,  Ex  parte 312 

Knowles  v.  Sandercock 481,  483,  484,  488 

Knox  V.  Los  Angeles 273 

Knutte  V.  Superior  Court 174 

Kohler,  Ex  parte 15.5,  244,  246 

Koppikus  V.  State  Capitol  Commrs 136,  173,  573 

Koser,  Ex  parte 255,  26U 

Kowalsky,  In  re 141 

Krause    v.   Durbrow 265 

Krogh  V.  Pacific  Gateway  etc.  Co 495 

Kuback,   Ex  parte 449 

Kullman,  Salz  &  Co.  v.  Superior  Court 183 

Kumler  v.  Supervisors 264,  374 

L 

La  Societa  etc.  v.  San   Francisco 443 

La  Societe  Francaise  etc..  Matter  of 199,  261,  477 

La  Societe  Francaise  v.  District  Court 320 

Lacey,  Ex  parte 156,  441,  446 

Lacy  V.  Gunn 257 


XXXll  TABLE  OF  CASES  CITED. 

Page 

Laf orge  v.  Magee 177 

Laguna  Drainage  Dist.  v.  Charles  Martin  Co 167 

Lake  Tahoe  Ey.  etc.  Co.  v.  Roberts 545 

Lambert,  In  re 158 

Lambert  v.  Davis 161 

Lampe  v.  San  Francisco 169 

Lander,  Estate  of 274 

Lane,  Ex  parte 447 

Langan  v.  Langan 307,  308 

Larew  v.  Newman 437 

Larrabee  v.  Baldwin 480,  482 

Larrabee  v.  Cloverdale 169 

Larue  v.  Davies 308 

Lassen  Co.  v.  Cone 184,  451 

Lataillade  v.  Orena 319 

Lathrop  v.  Brittain 372,  531 

Lathrop  v.  Mills xiii 

Laurel  Hill  Cemetery  v.  San  Francisco 441,  445,  448 

Law  V.  San  Francisco 243,  384,  466 

Lawrence,  In  re 454 

Lawson  v.  Lawson 146,  258 

Leach  v.  Aitken 290 

Leake  v.  Colgan 249 

Learned  v.  Castle 602 

Leavitt  v.  Lassen  Irr.  Co 562 

Le  Breton  v.  Superior  Court 328 

Lee  V.  Southern  Pac.  R.  E.  Co 489 

Leese  v.  Clark 295 

Legault  V.  Board  of  Trustees 594 

Lehigh  Valley  E.  E.  Co.  v.  Pennsylvania 555 

Leloup  V.  Port  of  Mobile 550 

Lemon,  Ex  parte 383,  416,  453 

Lent  V.  Tillson 162,  173,  456,  474,  524 

Leonard  v.  January 250 

Le  Tourneux  v.  Gilliss 278 

Levee  Dist.  No.  9  v.  Farmer 165 

Levinson,  In  re 295 

Levinson  v.  Boas 214 

Levy  v.  Superior  Court 153,  183,  323 

Lewis  V.  Colgan 270,  275 

Lewis  V.  County  Clerk 324 

Lewis  v.  Dunne 246,  250,  252 

Lewis  V.  Johns 587 

Lewis  V.  Southern  Pac.  E.  R.  Co 494 

Lewis   V.   Widber 464 

Lichtenstein,  Ex  parte 263 

Lick  V.  Austin 517,  520 

Liddell,  Ex  parte viii,  243,  244,  245,  247 

Linck  V.  Meikeljohn 591 

Linehan,  In  re 447 

Lin  Sing  v.  Washburn 440,  581,  582 

Lionberger  v.  Rowse 556 

Litch  V.  O'Connor 306,  312 

Livermore  v.  Waite 577,  578,  583 

Livermore  Warehouse  Co.  v.  Southern  Pac 499 

Lloyd,  Ex  parte 340 


TABLE  OF  CASES  CITED.  XXxiii 

Page 
Lloyd  V.  Davis 529 

London  &  San  Francisco  Bank  v.  Block 493,  517 

Longan  v.  Solano  Co 244,  247,  264,  371,  373,  374 

Long  Beach  Chamber  of  Commerce  v.  Pacific  Electric  Ry.  Co 509 

Lord   V.   Dunster viii,  ix,  311 

Lord  V.  Goldberg 304 

Lorenzen,  Ex  parte 129 

Los  Angeles  v.   Gager 171 

Los  Angeles  v.  Hance 250 

Los  Angeles  v.  Hollywood  Cem.  Assn 440,  445,  449 

Los  Angeles  v.  Kirk 357 

Los  Angeles  v.  Lelande 251 

Los  Angeles  v.  Los  Angeles  etc.  Gas  Co 523 

Los  Angeles  v.  Teed 256,  380,  456,  459,  465,  467 

Los  Angeles  Co.  v.  Eikenberry 442,  451,  452 

Los  Angeles  Co.  v.  Lamb 600 

Los  Angeles  Co.  v.  Lopez 376 

Los  Angeles  Co.  v.  Orange  Co 368 

Los  Angeles  Co.  v.  Spencer 201,  247,  580 

Los  Angeles  P.  B.  Co.  v.  Higgins 590 

Los  Angeles  S.  Dist.  v.  Longden 381,  384 

Lougher    v.    Soto 258 

Love  V.  Baehr  286 

Low   V.    Marysville 378 

Lowe  V.  Yolo  Co.  etc.  Water  Co 564 

LoM'enberg  v.   Levine 178 

Lower  Kings  Eiver  Ree.  Dist.  No.  531  v.  MeCullah 256 

Lower  Kings  Eiver  Rec.  Dist.  No.  531  v.  Phillips 159 

Lubliner  v.  Alpc-rs 419 

Luco   V.   De   Toro 294 

Luco  V.  Superior  Court 329 

Lukens  v.  Nye 233 

Lukrawka  v.   Spring   Valley  Water   Co 473 

Lum  V.  American  Wheel  etc.  Co 480 

Lundy  v.  Delmas 361 

Luther  v.  Borden 215   219   223 

Lux  V.  Haggin .' '  i65 

Lyons  v.   State 182 

M 

Machado  v.  Maehado 301 

Mack   V.   Jastro 45g 

Mackay  v.  San  Francisco 516    519 

Mackenzie  v.  Hare '  192 

Maddux   v.   Brown 57g 

Madera  County  v.  Raymond  G.  Co ]  ,    167 

Madera  Err.  Dist.,  In  re, x,  163,  209,  378,  465,  515,'  524,  525 

Madera  R.  Co.  v.  Raymond  Granite  Co 166    496 

Madera  Waterworks  v.  Madera _'  473 

Madison  etc.   R.  R.  Co.  v.   Whiteneck * .  ' .   496 

Maginnis,   In   re 245     249 

Maguire,  In  re 186,' 446*  450^  595,  600 

Mahoney    v.    American    Land    etc.    Co 564 

Maier,  Ex  parte 213 

Maine   v.   Grand   Trunk   Ry.    Co 555 


XXXIV  TABLE  OF   CASES  CITED. 

Page 

Major  V.  Walker 486 

Malone  v.   Eoy 178 

MalsoD  V.  Vaughn 304,  338 

Manchester,  In   re 200 

Manley  v.   Cunningham 576 

Manning  v.  App    Consol.  Gold  Min.  Co 346 

Mannix  v.  Wilson 591 

Mansfield,    Ex    parte 442,  443,  455 

Mardis  v.  McCarthj-^ 418 

Marin   Municipal    Water   Dist.,   In   re 511 

Marin  Water  etc.   Co.   v.   Sausalito 272,  473,  563 

Market  Street,  In  re 522,  524 

Market  St.  Ey.  Co.  v.  Hellman 478 

Marks,  In  re   235,  325 

Marsh    v.    Hanley xii,  xiii 

Marsh  v.  Supervisors 144,   194,  262,  266,  375 

Marston  v.  Humes 251 

Marston   v.   Kuhland 306,  312 

Martin,   Estate   of 274 

Martin,  In  re 185,  249,  255,  258 

Martin  v.  Election  Commrs 387,  433,  577 

Martin  v.  McCabe 130 

Martin  v.  Wagner 295 

Martinovich  v.  Marsicano 321 

Marysville  v.  Yuba 380,  384 

Mascolo,  Ex  parte 146,  245,  249,  250,  260 

Mateer  v.  Brown 295 

Mathis  V.   State 251 

Matthews    v.    Ormerd 529,  530 

Mauch,  Ex  parte 291 

Maurer  v.   King 268 

Maurer  v.  Mitchell 310 

Maxfiekl  v.  Johnson 304,  305,  317,  338 

Maj^hofer   v.   Board   of    Education 590 

McAllister  v.  Hamlin xiv,  199 

McAulay   v.   Tahoe   Ice   Co 305,  312 

McBean  v.  Fresno 446,  465 

McCabe   v.    Carpenter 201,   453,  454 

McCabe  v.  Jeff erds xiii 

McCall  V.  California 551 

McCann  v.  Sierra  County 164 

McCapes,   In   re 130 

McCarthy,  Ex  parte vii,  138,  209,  210,  340 

McCarthy  v.   Gaston   Eidge  Mill   etc.   Co 136 

McCaughey  v.  Lyall 160 

McCauley  v.  Culbert 374,  437 

McCauley   v.   Fulton 291 

McCauley  v.  Weller 164,  170 

McClain,  Ex  parte 214,  448 

McClure  v.  Nye 21o',  274 

McCoppin  V.  McCartney 179,  528 

McCord  V.   Slavin 273,   355,  357 

McCracken  v.  San  Francisco 464 

McCrary    v.    Beaudry 5(54 

McCray  v.  Manning 168  245 

McCuIloch  V.  Maryland 132  548 


TABLE  OF  CASES  CITED.  XXXV 


JO 
McDaniel  v.  Pattison 323 

M'cDerniot    v.    Barton 375 

McDonald  v.  Patterson 187,  475,  599,  600 

McDonald  v.  Taylor 445,  576 

McFadden  v.  Los  Angeles 562 

McFarland  v.  Martin 327 

McGee  v.  San  Jose 176 

MeGowan  v.  McDonald xiii,  478,  479,  481 

McGregor  v.  Board  of  Trustees 5S9 

McGrew  v.  Mayor  etc.  of  San  Jose 336,  605 

McHenry  v.  Downer 514,  519 

McKee  v.  Title  Ins.  etc.  Co 490,  493 

McKenna,  Ex  parte 445,  451 

McManus,   Ex   parte 145,   185,    199 

McNally,   Ex  parte 451 

McNee  v.  Lynch 576 

McNiel  V.  Borland 326 

McNulty,  Ex  parte 212,  214,  478 

McNulty  V.   California 139 

McPhee,  Estate  of 157,  248 

McPherson   v.  Bartlett 225 

McEae  v.  Pine 444 

Meacham  v.  Bear  Valley  Irr.  Co 156 

Meade  v.  Watson    254 

Meeham  v.   McKay 339 

Melone,   Estate   of 250 

Melone  v.  State 286 

Melvin   v.    State 247,  353 

Mendenhall  v.  Gray 209,  591 

Menzies  v.  Board  of  Equalization 310 

Mercantile  Nat.  Bank  v.  Hubbard 557 

Mercantile  National  Bank  v.  New  York 556,  560 

Merced  Bank  v.  Eoseuthal 332,  596 

Merced    Co.    v.    Fleming 451,  455 

Merced  Co.  v.  Helm 441,  455 

Merced  Falls  Gas  etc.  Co.  v.  Turner 448,  471 

Merced  Eiver  Electric  Co.  v.  Curry 490 

Mercer's   Case    230 

Merchants'  &  Mfrs.  Bank  v.  Penn 558,  559,  560 

Merchants'  Nat.  Bank  v.  Escondido  Irr.  Dist 163,  177,  457,  476 

Merchants'  Trust   Co.  v.  Wright 157 

Merkley    v.    Williams 373 

Merrill  v.  Southside  Irr.  Co 562 

Mesmer  v.  Board  of  Public  Service 467 

Meyer  v.  Boonville 221 

Meyer  v.  Brown 17(5 

Meyer  v.   Kalkmann 291 

Meyers   v.   Kenfield 349 

Middleton   v.   Low 279 

MigLiavacca  v.  Napa 419 

Miles  V.  Woodward 492 

Miller,  Ex  parte 138 

Miller,  In  re 131,  146,  186,  245,  248,  258,  595 

Miller  v.  Byrd     575 

Miller  v.  Dunn     vii^  275 

Miller  v.  Heilbron 519 


XXXVl  TABLE  OF  CASES  CITED. 

Pago 

Miller  v.  Kern  Co 257,  520,  527,  539 

Miller  v.  Kister 142,  264 

Miller  v.  Supervisors 310 

Miller  v.  Wilson 146,  186,  245,  248,  258,  595 

Miller  &  Lux  v.  Kern  Co.  Land  Co 327,  494 

Milliken  v.  Huber 310 

Milliken  v.  Meyers 448 

Mills  V.   Sargent xiii,  531 

M'ilner  v.  Eeibenstein 336,  340 

Miltimore  v.  Nof ziger  Bros.  L.  Co 590 

Miner  v.  Justice's  Court 259,  290,  291,  418 

Minor  v.  Happersett 215,  222 

Minturn  v.  Hays 517,  519 

Mintzer  v.  Schilling 265,  379 

Mirande,  Ex  parte 184,  450 

Mitchell,  In  re 242,  255,  291 

Mitchell  V.  Beckman -.32,  483 

Mitchell  V.  Winnek 209,  360 

Mock,  In  re  303 

Mogensen,  Ex  parte 448 

Mohle  V.   Tschirch 256 

Mblineux   v.   California 272,  273 

Montague  &  Co.  v.  English 464 

Montague  &  Co.  v.  Furness 129 

Montgomery,  In   re 440 

Montgomery    Ave.    Case xii 

Mooney  v.  Supervisors 514 

Moore,  Estate   of 309 

Moore  v.  Boyd 483 

Moore   v.    Martin 330 

Moore  v.  Patch 144,  259 

Moore  v.  Williams 249,  258 

Moran  v.  Eoss vii,  ix,  171,  504 

More  V.  More 322 

Morgan   v.   Menzies 387 

Morrow  v.  Superior  Court 480,  483,  484 

Morse  v.  De  Ardo 590 

Morton  v.  Broderick viii,  311,  383 

Mosely  v.  Torrence 575 

Moulton  V.  Parks 162 

Mount,  Ex  parte 450 

Moynier,  Ex  parte 130,   145,  256,  447 

Murphey  v.  Menard 251 

Murphy,   Ex   parte    258,  448 

Murphy,  In  re   444 

Murphy  v.  Bondshu 244 

Murphy  v.  Curry   144,  185 

Murphy  v.  Pacific  Bank 142,  255 

Murphy  v.  Superior  Court 327 

Murray,  In  re 505,  509,  565,  566,  567,  568 

Murray  v.  Colgan 276 

Mutual  Electric  etc.  Co.  v.  Ashwortli 470 

Myers  v.  English x,  177,  343 

Myers  v.  Sierra  Valley  Stock  etc.  Co 485 


TABLE  OF  CASES  CITED.  XXX vii 

N  Pago 

Napa  State  Hospital  v.  Dasso 185,  477 

Napa  State  Hospital  v.  Yuba  Co 145,  257 

Napa  Valley  E.  R.  Co.  v.  Board   of  Suprs 167^  272 

National  Bank  v.  Los  Angeles  Iron  etc.  Co 303 

Nat.  Bank  of  Baltimore  v.  Baltimore 560 

Nat.  Bank  of  Commerce  v.  New  Bedford 559 

National  Bank  of  Redemption  v.  Boston 557 

Nat.   Bank   of   Wilmington   v.    Chapman 560 

National  Newark  Banking  Co.  v.  Newark 560 

Navajo  Min.  etc.  Co.  v.  Curry 187,  489,  490 

Nelson,  Estate  of 301 

Nelson  v.  East  Side  Grocery  Co 494 

Neustadt,  Ex  parte 328 

Nevada  Nat.  Bank  v.  Supervisors 454,  536 

Nevada  School  Dist.  v.  Schoecraf t 254 

New  Albany  etc.  R.  Co.  v.  Tilton 496 

New  Jersey  v.   Wilson 132 

Newman,  Ex  parte 129,  130,  131,  132 

Newman  v.  Lester 438 

Newton,  Ex  parte 523 

New  York,  L.  E.  &  W.  R.  R.  Co.  v.  Pennsylvania 555 

Niccolls  V.  Rice \ 485 

Nicholas,  Ex  parte  138 

Nicholl  V.  Koster 200,  382,  384,  432 

Nichols  V.  Somerset  etc.  R.  R.  Co 496 

Nickey  v.  Stearns  Ranchos  Co 167,  168 

Niehaus  Bros.  Co.  v.  Contra  Costa  W.  Co 563 

Niles   V.   Edwards 293    294 

Niven  v.  San  Diego  Electric  Ry.  Co 474 

Noble,  Ex  parte 442 

Noble  V.  Hook 574 

Noel   V.   Smith 303    312 

Nones  v.  Edsall 229 

Norblett  v.  Farwell 339 

Norfolk  &  Webster  R.  Co.  v.  Penn .".*,.".*   551 

Norris  v.  Cross 221 

Norris  v.  Hoyt 182 

North  V.  McMahan 221 

North  Beach  etc.  R.  R.  Co.,  Appeal  of ....   165 

Northwestern  Pacific  R.  R.  Co.,  In  re 499 

Norwood  v.   Baker 162    173 

Nougues  V.  Douglass ix    x'  572 

Nugent's  Case   ', . .'  228 


O 

Oakland  v.  Oakland  Water  Front  Co 209 

Oakland  v.  Southern  Pac.  R.  R.  Co .*...'.'.*.'!.'.'   534 

Oakland  v.  Thompson   '.'. .  .  .   257 

Oakland  Pav,  Co.  v.  Barstow 47,3 

Oakland  Pav.  Co.  v.  Hilton vii'  229,'  47.5,'  '578    600 

Oakland  Pav.  Co.  v.  Tompkins   vii    475    578 

Oakland  etc.  Co.  v.  Rier *.'.*..'...  ..'.....'  524 

O'Callaghan  v.  Booth *  * '  *   325 

Odd  Fellows'  Cem.  Assn.  v.  San  Francisco '    * "   448 

O'Ferrall  v.  Colby ..........][..[   227 


XXXVIU  TABLE  OF  CASES  CITED. 

Pagfo 

Ohio  etc.  E.  E.  Co.  v.  McClelland 496 

Ohm,  Estate  of 309 

Older  V.  Superior  Court 141,  311,  599 

Olender  v.  Crystalline  Min.  Co 160 

Oliverez,   In    re 601 

Olson   V.    San    Francisco 516,  520 

O'Meara  v.  Hables 307,  327 

Omnibus  E.  E.  Co.  v.  Baldwin 143 

Opinion  of  Judges 234 

Opinion  of  Justices 227,  234 

Orange  Co.   v.   Harris xiii 

Orange  Co.  v.  Los  Angeles  Co 368 

Orena  v.   Sherman 531 

Oro  Electric  Corp.  v.  Eailroad  Comm 473,  474,  509 

Osborne  v.  Florida 551 

Osborne  v.  Mobile .350 

O'Shea,  In  re 135,  200 

Otis  V.  Haseltine 179 

Otis  V.  Parker 268 

Otto  V.  Long 159 

Owensboro  Nat.  Bank  v.  Owensboro 558 


P 

Pacific  Bank  v.  De  Eo 477 

Pacific  Bridge  Co.  v.  Kirkham 453 

Pacific  Coast  Ey.  Co.  v.  Porter 171 

Pacific  Coast  etc.  Soc.  v.  San  Francisco 521,  537 

Pacific  Gas  &  El.  Co.  v.  Eoberts 546 

Pacific  Gas  etc.  Co.  v.  Chubb 172 

Pacific  Mut.  Life  Ins.  Co.  v.  San  Diego 459 

Pacific  Nat.  Bank  of  Tacoma  v.  Pierce  Co 559 

Pacific  Paving  Co.  v.  Verso 312 

Pacific  Postal  etc.  Co.  v.  Dalton 262,  522 

Pacific  Ey.  Co.  v.  Wade 136 

Pacific  States  Tel.  &  Tel.  Co.  v.  State 214 

Pacific  Telephone   etc.   Co.   v.   Eshleman 172,  311,  504 

Pacific  Undertakers   v.   Widber 465 

Packer,  Estate  of 129,  178 

Page  V.  Ellis 317 

Palache   v.   Hunt viii,  310 

Palmer  v.  McMahon 559 

Palmer  v.  Southern  Cal.  Mt.  Water  Co 565 

Parker  v.  Otis 268 

Parker  v.  State 226,  227 

Parkinson  v.  Johnson 229,  233 

Parra,  In  re 188,  266 

Parrott,  In  re 581,  582 

Parsons  v.  San  Francisco 129,  169 

Parsons  v.  Tuolumne  Co.  Water  Co 300,  325 

Partridge  v.  Butler 482 

Pasadena  v.  Stimson 143,  255,  265,  378 

Pasadena  v.  Superior  Court 320 

Pasadena  School  Dist.  v.  Pasadena 440 

Pattison   v.    Yuba    County xi,  211,  573 

Patton  V.  Board  of  Health 593 


TABLE  OF  CASES  CITED.  XXXIX 

Pago 

Patton  V.  Los  Angeles  Pacific  Co 186 

Patty  V.  Colgan 273 

Paty  V.  Smith 199 

Payne   v.   Murphy 259,  375 

Peachey  v.  Board  of  Supervisors 600 

Pearsons,  In  re 332 

Peckham  v.  Fox 590 

Pelton  V.  Commercial  National  Bank 559 

Peninsular  etc.  Co.  v.  Pacific  etc.  Co 319 

Pennie  v.  Eeis 155,  249,  251,  273,  275,  456 

Pennie  v.  Roach  319 

Pennsylvania  R.  R.  Co.  v.  Riblet 496 

Pennybecker  v.  McDougal 318 

Penovar  v.  Southern  Pac.  Co 505 


Pcop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 


e  V.  Abbott    244 

e  V.  Addison    283 

e  V,  Ah  Chung    293 

e  V.  Ah  Fong    248 

e  V.  Ah  Lee  Doon 137 

e  V.  Ah  Sing 344 

e  V,  Akey 346 

e  V.  Anthony 140 

e  V.  Apgar 151,  308 

e  V,  Applegate   300,  308 

e  V.  Arnett     151 

e  V.  Ashburner   593 

e  V.  Ashbury    517 

e  V.  Austin" 518,  524 

e  V.  Babcock  354,  381 

e  V.  Badlam    520,  521 

e  V.  Bagley 381,  416 

e  V.  Baine    283 

e  V.  Baird    153 

e  V.  Baldwin    345 

6  V.  Bank  of  San  Luis  Obispo 248,  599 

e  V.  Banning  Co 175 

e  V.  Barbour 293 

e  V.  Barker    345 

e  V.  Bartlett    453 

e  V.  Bartol   314 

e  V.  Berkeley    380 

e  V.  Bigler    xii,    209,  584 

e  V.  Bingham    227,  305 

e  V.  Bircham     xiv 

e  V.  Bird    148 

e  V.  Black  Diamond  etc.  Min.  Co 517,  519 

e  V.  Blake    173 

e  V.  Blanding  283 

e  V.  Board  of  Aldermen 226,  227 

e  V.  Board   of   Education 198,  199,  359,  600 

e  V.  Board  of  Supervisors 198,  372,  376,  387 

6  V,  Bond 176 

e  V.  Bonzani    309 

6  V.  Booker    133 

e  V.  Bossert   148 

e  V.  Botkin    345 


Xl  TABLE  OP  CASES  CITED. 

Pago 

People  V.  Bowen   350 

People  V.  Boxer    345 

People  V.  Bray    213,  256 

People  V.  Brewer   346 

People  V.  Brooks ix,  165,  179,  198,  240,  286,  573. 

People  V.  Broome 226 

People  V.  Brown 153,  372 

People  V.  Budd 261,  266,   281,  282 

People  V.  Bundy    154 

People  V.  Blinkers    150 

People  V.  Burbank    332,  592 

People  V.  Burns 235 

People  V.  Burt 231 

Ptople  V.  Bush    149 

People  V.  Cady   163 

People  V.  Cage    149,   150,  151 

People  V.  California  Fish  Co 187,  209,  265,  266,  378,  380,  569,  570 

People  V.  California  Safe  Deposit  &  T.  Co 482 

People  V.  Campbell 138,  180,  332,  437,  592 

People  V.  Carrique 229,  236 

People  V.  Carson    145 

People  V.   Cary    329 

People  V.  Casey 344 

People  V.  Caulfield   308 

People  V.  Cazueau   281 

People  V.  Central  Pac.  E.  E.  Co 

.  .  .143,  145,  184,  255,  256,  260,  261,  262,  263,  372,  477,  518,  519,  537 

People  V.  Chapman    viii,  365 

People  V.  Chaver   137,  336 

People  V.  Chew  Lan   Ong 136 

People  V.  Chew  Sing  Wing 345 

People  V.  Christensen   344 

People  V.  Clark 152,  163,  233 

People  V.  Cline   344 

People  V.  Cobb 247,  291,  337,  601,  606 

People  V.  Cogswell 587 

People  V.  Cohen    517 

People  V.  Colby    602 

People  V.  Coleman vii,  viii,  145,  156,  515,  519,  523 

People  V.  Commissioners 556 

People  V.  Common  Council 259,  379 

People  V.  Coronado   381,  419 

People  V.  Cory    329 

People  V.  Counts    277 

People  V.  Cummings    151 

People  V.  Curry 249,  283,  577 

People  V.  Curtis   151 

People  V.  Dashaway  Assn 328 

People  V.  Davie    420 

People  V.  Davis    302 

People  V.  Day    300,  325 

People  V.  Def oor 152 

People  V.  De  la  Guerra 191 

People  V.  Desperati   150 

People  V.  Devlin 152 

People  V.  Dick    344 


TABLE  OF   CASES  CITED.  xli 

Page 

People  V.  Diller    15^ 

People  V.  Dobbins    24G 

People  V.  Doe  G.  1,034 518 

People  V.  Dorsey    372 

People  V.  Duncan   245 

People  V.  Dunn 231,  277,  517,  534 

People  V.  Durrant    142,  605 

People  V.  Eastman 528 

People  V.  Ebey   334 

People  V.  Eddy    vii,  517,  520 

People  V.  Edwards viii,  282,  592,  593 

People  V.  Election  Commrs 417 

People  V.  Elk  Eiver  Mill  etc.  Co 173,  213,  562 

People  V.  Eppinger    152 

People  V.  Ferguson    376 

People  V.  Finley 145 

People  V.  Fitch    281,  282 

People  V.  Fleming    313 

People  V.  Fong  Chung   149 

People  V.  Fowler 300,  337 

People  V.   Freeman    viii,    201,  585 

People  V.  Frey    313 

People  V.  Frisbie    199 

People  V.  Gallagher    602,  606 

People  V.  Garnett    149 

People  V.  Gerke    514 

People  V.  Gillespie   340 

People  V.  Glenn   Co xii,   231,  262 

People  V.  Goldtree    161,  534 

People  V.  Gordon   151,  344 

People  V.  Greene 151 

People  V.  Gunn 416,  417,  418 

People  V.  Gunst 594 

People  V.  Gutierrez   344 

People  V.  Hamberg    150 

People  V.  Hamilton   606 

People  V.  Hammond    281,   381,  594 

People  V.  Hanford  High  School 467 

People  V.  Hannon  346 

People  V.  Hardisson 152 

People  V.  Harlan   229,  23 1 

People  V.  Harrington    149 

People  V.  Hartman 148 

People  V.   Harvey  311 

People  V.  Hastings 199,  522,  531 

People  V.   llaydon    314 

People  V.  Hayne    x,  290 

People  V.  Havs 176,  178 

People  V.  Heaeoek   294,  316,  317 

People  \ .  Hecht    417 

People  \    Helbing    151 

People  V.  Henry 605 

People  V.  Henshaw 142,  144,  249,  255,  378,  380 

People  V.  Ilibernia  Bank   517 

People  V.  Iliggius    151 

People  V.  Hill 226,  382,  386,  592,  593 


xlii  TABLE  OF  CASES  CITED. 

Page 

People  V.  Hoee   387,  416,  417 

People  V.  Ho   Kim  You 314 

People  V.  Holden    196 

People  V.  Holladay 178 

People  V.  Home  Ins.  Co 518 

People  V.  Horn 149,  150 

People  V.  Horsley  3"G 

People  V.  Houston   45,'5 

People  V.  Howard 3S1 

People  V.  Hunckeler    151 

People  V.  James   150 

People  V.  Jewett     vii,  593 

People  V.  Johnson 212,  304,  307,  308,  374,  437,  573 

People  V.  Jordan    150,   301,  308 

People  V.  Joselyn 329 

People  V.  Kalloch 308 

People  V.  Keefer 151 

People  V.  Kelly 138 

People  V.  Kelsey 521 

People  V.  Kerber    570 

People  V.  Kern  Co 325 

People  V.  Kerrick   150,  151 

People  V.  Kerrigan    148 

People  V.  Kewen    361 

People  V.  King 249,   256,   345,  346 

People  V.  Kizer    314 

People  V.  Kuches   308 

People  V.  Langdon 198,  201,  283,  585 

People  V.  Lapique    312 

People  V.  Larson 150 

People  V.  Latham   520,  522 

People  V.  Latimer 347,  520 

People  V.  Lawley   472 

People  V.  Lawrence 329 

People  V.  Lee    345 

People  V.  Lee  Yune  Chong 152 

People  V.  Lennox  137 

People  V.  Leonard   236 

People  V.  Levee  Dist.  No.  6 377,  476 

People  V.  Lewis    139 

People  V.  Lichtenstein    309 

People  V.  Linda  Vista  Irr.  Dist 246,  249 

People  V.  Lodi  High  School  Dist 201,  256,  357 

People  V.  Logan   308 

People  V.  Long  Beach    385 

People  V.  Los  Angeles    385 

People  V.  Los  Angeles  etc.  Gas  Co 471 

People  V.  Los  Angeles  etc.  Ry.  Co 488 

People  V.  Love   127 

People  V    Lynch xi,   183,  452,  453,  524 

People  V    MacPhee    314 

People  V .  Mariposa    199 

People  V.  Markham    224,  332 

People  V.  Martin 454,  600 

People  V.  Matezuski 346 

People  V.  Maughs    154 


TABLE  OF  CASES  CITED.  xliii 

Page 

People  V.  McCauley 334 

People  V.  MeJre^ry 514,  515,  518,  519,  521,  522,  531,  534 

People  V.  McCune    161 

People  V.  MeFadden 212,  262,  265,  375,  377 

People  V.  McGee 346 

People  V.  McGuire    366,  368 

People  V.  McKaniy 235,  307 

People  V.  McNealy    150 

People  V.  Meiggs  'Wharf  Co 308 

People  V.  Mellon 334 

People  V.  Melony    281,  286 

People  V.  Merritt   246,  219,  313 

People  V.  Metropolitan   Surety   Co 138 

People  V.  Meyers    308 

People  V.  Middleton 593 

People  V.  Mier 318,  339 

People  V.  Mitchell    344 

People  V.  Mizner    281 

People  V.  Mooney 152 

People  V.  Moore  320 

People  V.  Moran    147,  148 

People  V.  Morino    147 

People  V.  Morse    177 

People  V.  Mortimer   180 

People  V.  Most   141 

People  V.  Mbtt    281,  282 

People  V.  Moxley 591 

People  V.  Miihlner   152 

People  V.  Mullen der    247,  264,  265 

People  V.  Mullins 387 

People  V.  Murray   345 

People  V.  Myers   366 

People  V.  Naglee    523 

Pl  ople  V.  Nally 212 

People  V.  Nevada    200,  325 

People  V.  Newman    441,  599 

People  V.  Nolan   132,  156 

People  V.  Nye ix,  187,  211,  281,  286,  596 

People  V.  Nyland   291,  330 

People  V.  Ny  Sara  Chung 150,  151 

People  V.  Oakland   383,  418,  419 

People  V.  Gates   250,  252 

People  V.  O'Brien viii,  154,  344,  345,  346 

People  V.  O'Bryan   154,  313 

People  V.  Oiler   163 

People  V.  Olivera 318 

People  V.  Ontario 211,  385,  457 

P.  ople  V.  Oppenheimer  135 

People  V.  Oreileus    150 

People  V    Pacheco 240,  272,  491,  572,  573 

People  V.  Paeifie  Gas  &  El.  Co 308 

People  V.  Palermo  L.  &  W.  Co 255,  329,  339 

People  V.  Parker 282,  283 

People  V.  Parks 211,  244,  250,  453 

People  V.  Parvin    244.  246 

People  V.  Paulsell 344 


xliV  TABLE  OF  CASES  CITED. 

Pago 

People  V.  Pen  rlegast    xii,  226 

People  V.  Peralta 300 

People  V.  Perini   135 

People  V.  Perry xiii,  305,  310,  346,  593 

People  V,  Phoenix 282 

People  V.  Finer 345,  31S 

People  V,  Pingree 311 5 

People  V.  Pittsburg  E.  E.  Co 53  i 

People  V.  Pond   3S'I 

People  V.  Potter    351 

People  V.  Powell   137 

People  V.  Provines 198,  201,  291,  377 

People  V.  Pryal   141 

People  V.  Eansom 596,  605 

People  Y.  Eaymond     519 

People  V.  Eeclamation  Dist.  No.  551 162,  187,  192 

People  V.  Eedinger    149 

People  V.  Eeid 283,  593 

People  V.  Eice   226 

People  V.  Eichards    606 

People  V.  Eoberts    149 

People  V.  Eosboroiigh 282,  325,  332 

People  V.  Eoss  151,  346 

People  V.  Euef 302,   303 

People  V.  Euss    569 

People  V.  Sacramento  County 535 

People  V.  Sacramento  Drainage  District.  .  .145,  188,  248,  265,  291,  377 

People  V.  Samonset   345 

People  V.  Sanderson 201,  282 

People  V.  Sands 336,  340 

People  V.  San  Joaquin  Valley  Agr.  Assn 214,  241,  353,  477 

People  V.  Sassovieh.     xi 

People  V.  Schmidt   152 

People  V.  Seeley 141 

People  V.  Selma   Irr.    Dist 37S 

People  V.  Senter 321 

People  V.  Seymour   179,  209 

People  V.  Shear 308,  593 

People  V.  Sierp 163 

People  V.  Smalling    149,   150 

People  V.  Smallman    308 

People  V.  Smith    152 

People  V.  Soto    316 

People  V.  Southern  Pac.  E.  E.  Co 569 

People  V.  Stanford   477 

People  V.  Stephens viii,    151,   469,    561,   562,    564,  567 

People  V.  Stockton  Sav.  etc.  Soc 488 

People  V.  Stockton  etc.  Co 522 

People  V.  Stokes   148,  329 

People  V.  Stratton 281,  593 

People  V.  Strother   475 

People  V.  Superior  Court 245,  246,  247,  260,  263,  266,  324,  497 

People  V.  Supervisors 369,  370,  372,  376,  456,  534 

People  V.  Sutton    153 

People  V.  Svendsen    314 

People  V.  Swafford    148 


TABLE  OF  CASES  CITED.  xlv 

Pago 

People  V.  Tarl30x   14S 

People  V.  Templeton    368 

People     V.  Terrill    150 

People  V.  Thompson   226,  227 

People  V.  Tinder   1 34 

People  V.  Tisdale    181 

People  V.  Titlierington   344 

People  V.  Toal 290.  336,  340,  418 

People  V.  Todd 586 

People  V.  Tomsky    314 

People  V.  Travers    152 

People  V.  Tucker    152 

People  V.  Turner 133 

People  V.  Twelfth  District  Court vii,  142,  143,  1S4,  198,  254 

People  V.  Vereneseneckoekockhoff    344,  345 

People  V.  Vick    308 

People  V.  Wardrip   345 

People  V.  Waterman    332 

People  V.  Weaver    558 

People  V.  Webb    viii,  149 

People  V.  Weller    332 

People  V.  Wells  ix,  282,  293,  295 

People  V.  Whartenby    520 

People  V.  Wheeler 372,  592 

People  V.  White    309 

People  V.  Whitman   233,  236,  279,  282 

People  V.  Whyler    xiii,  520,  522,  524,  525 

People  V.  Wickham    152 

People  V.  Williams   134,  308,  374 

People  V.  Williamson    383 

People  V.  Wilmington  385 

People  V.  Wilson 149,  314,  346,  347 

People  V.  Wong  Ah  Ngow   344 

People  V.  Wong  Bin   332 

People  V.  Wong  Wang   374 

People  V.  Woods    150,  1 76 

People  V.  Worswick    383 

People's  Nat.  Bank  v.  Marye   559 

Pereria  v.  Wallace ^ 187,  469,  471 

Perkins,  Ex  parte 133 

Perkins  v.  Ealls   325 

Perry  v.  Ames 320 

Perry  v.  Washburn 515 

Pfahler,  In  re 211,  216,  244,  384,  416,  419,  420,  440,  457,  467 

Pfirrman,  Ex  parte 249,  442,  455 

Phelan  v.  8an  Francisco xiv,  200 

Phelps  V.  Winclionib   593 

Philadelphia  S.  S.  Co.  v.  Pennsylvania 552,  555 

Philbrook,  In  re 294 

Philbrook  v.  Newman 293 

Pierce  v.  City  of  Los  Angeles 157 

Pierpont  v.  Crouch 243 

Pignaz  V.  Burnett 178 

Pioche  V.  Paul   xiii 

Pioneer  Box  Co.  v.  Southern  Pae.  Co 499 

Piper,  Appeal  of 172.  173 


Xlvi  TABLE  OF   CASES  CITED. 

Pago 

Pittman  v.   CarstenlDrook 495 

Pittsburgh  etc.  Ey.  Co.  v.  Backus 549 

Pittsburg  etc.  E.  E.  Co.  v.  Southwest  etc.  Ey.  Co 496 

Pixley  V.  Saunders 454,  457 

Piatt  V.  San  Francisco 416,  471 

Plumas  Co.  v.  Wheeler 451 

Polack  V.  Gurnee 138 

Poland  V.   Carrigan 309 

Politz  V.  Wickersham 209 

Pollock  V.  Cummings 326,  339 

Pollok  V.  San  Diego 201 

Pomona  v.  Sunset  Tel.  &  T.  Co 473 

Pond  V.  Pond 324 

Pool  V.  Superior  Court 305 

Popper  V.  Broderick 383 

Porter,  Estate  of 129 

Porter  v.  Imus 179 

Porter  v.  Thompson 251 

Porter's  Trial 234,  235 

Portland  v.  Stock 252 

Portland  etc.  E.  E.  Co.  v.  Grand  Trunk  Ey.  Co 504 

Postal  Telegraph  Cable  Co.  v.  Adams 551 

Potter  V.  Ames 170 

Potter  V.  Santa  Barbara  County 188 

Powell  V.  Phelan 274 

Powell  V.  Wilson 230 

Powelson  v.  Lockwood 301 

Power  V.  May 241,  275 

Prader,  Ex  parte 174 

Pratt  V.  Browne 250,  316,  374 

Pratt  V.  Spring  Valley  Water  Co 473,  474 

Pratt  V.  Spring  Valley  W.  W 440,  565 

Pratt  V.  Welcome 317 

Prentice,  In  re 386 

Price  V.  Whitman 233 

Prigg  V.  Commonwealth 132 

Prince  v.  Fresno 340 

Prince  v.  Lynch 484 

Pritchard  v.  Whitney  Estate  Co 146,  186,  245,  249 

Pritchett  v.  Stanislaus 379 

Proll  V.  Dunn 241 

Proulx  V.  Graves 337 

Prouty  V.   Stover 226 

Provident  etc.  Assn.  v.  Davis 250 

Pryor  v.  Downey 161,  199 

Purdy    v.    Linton xiii 

Puterbaugh  v.  Wadham 438 


Quale  V.  Moon 145 

Quan  Wo  Chung  v.  Laumeister 319 

Quarg,  Ex  parte 130,  441,  450 

Quigg  V.  Evans 418,  454 


TABLE  OF  CASES  CITED.  xlvii 

B  Page 

Eaisch  v.  Sausalito  Land  etc.  Co 306,  33S 

Eamish  v.  Hartwell 156 

Ramos  v.  San  Francisco-Oakland  Terminal  Eys 474,  509 

Ramsey  v.  Hoeger 491 

Randall  v.  Freed 305,  312 

Rankin  v.  Colgan 264,  272 

Eauer  v.  Williams 255,  265,  373,  378,  379,  387 

Ray  V.  Colby  &  Tenney  et  al 221 

Ream  v.  Siskiyou  Co 166,  241,  247 

Reardon  v.  San  Francisco 168 

Eebstock  v.  Superior  Court 153,  195,  196 

Eeclamation  Dist.  v.  Hagar 162 

Eeclamation  Dist.  No.  70  v.  Sherman 302,  378,  477 

Eeclamation  Dist.  No.  108  v.  Evans 162 

Reclamation  Dist.  No.  124  v.  Gray 476 

Reclamation  Dist.  No.  551  v.  Sacramento 518 

Redlands  v.  Biook 161,  263 

Redlands  etc.  Co.  v.  Redlands 470 

Red  Line  etc.  Agency  v.  Southern  Pac.  Co 500 

Reed  v.  Bernal 318 

Reed  v,  Collins   450 

Reed  v.  McCormick    324 

Eeed  V.  Omnibus  E.  E.  Co xii,  xiii,  339 

Reed  v.  Schon 236 

Reed  Orchard  Co.  v.  Superior  Court 170 

Reeve  v.  Colusa  Gas  etc.  Co 294 

Regina  v.  Neale 142 

Eeid  V.  Clay    162 

Reid  V.  Groezinger    373 

Reilly,  Ex  parte 336,  340 

Eeis,  Ex  parte 606 

Eeis  V,  State 572 

Eex  V.  Birt 142 

Rice  V.  National  City 437 

Richard's  Case 227 

Richards  v.  Wetmore 323 

Rickey  Land  etc.  Co.  v.  Glader 301,  306,  312 

Ricks  V,  Reed 326 

Rider  v.  Regan lo6,  159 

Risdon  v.  Prewett 307,  312 

Ritchie  v.  Dorland 320 

Riverside  Co.  v.  Butcher 580 

Riverside  Co.  v.  San  Bernardino  Co 368 

Roach,  Ex  parte 441 

Robert  v.  Police  Court xiv,  329,  385,  443 

Robertson   v.  Library  Trustees 464 

Robinson,  In  re 137,  138 

Robinson  v.  Dunn  272,  275 

Robinson  v.  Eberhart   576 

Robinson  v.     Kerrigan IGO,  200,  244,  266 

Robinson  v.  Magee   176,  177 

Eobinson  v.  Southern  Pac.  E.  E.  Co 504 

Eode  v.  Siebe 255,  262,  522 

Eodley  v.  Curry 317 

Eoebling's  Sons  Co.  v.  Butler 484 

Rogers,  In  re 154 


Xlviii  TABLE  OF  CASES  CITED. 

Page 

Rollins  V.  Wright 178,  254,  586 

Romaine,   Ex   parte 132 

Rood  V.  McCargar xiii 

Rosasco  V.  Tuolumne  Co 536 

Rose  V.  Estudillo 177 

Rosenberg  v.  Frank 319,  320 

Rosenblatt  v.  Johnston 558 

Ross  V.  Aguirre 245 

Ross  V.  Whitman 209 

Rothschild  v.  Bantel 460 

Rowe,  Ex  parte 154 

Royal  Trust  Co.  v.  MacBean 481 

Royer,  Estate  of 361 

Rudel  V.  Los  Angeles 169 

Ruef ,  Ex  parte 134,  139 

Ruperich  v.  Baehr 142,  145,  255,  256 

Russell,   In   re 302 

Russell,  Matter  of 473 

Russell  V.  Sebastian 473 

Rntledge  v.  Crawford 192 

Ryan  v.  Johnson 136,   144 

Ryan  v.  Oakland  Gas  etc.  Co 345 

Ryder,  Estate   of 321 

Ryder  v.  Cohn 290,  321 

S 

Sacramento  v.  Crocker 454,   523 

Sacramento  v.  Dillman    455 

Sacramento  Bank  v.  Pacific  Bank 484 

Sacramento  Co.  v.  Pf und 439 

Sacramento  O.   etc.  Home  v.  Chambers 186,  242 

Sacramento  Pav.  Co.  v.  Anderson 475 

Sacramento  Terminal  Co.  v.  McDougall 171 

Sah  Quah,  In  re 182 

St.  Helena  v.  Ewer 471 

Sala  V.  Pasadena 169 

San  Benito  Co.  v.  Southern  Pac.  R.  R.  Co 519 

San  Bernardino  v.  Southern  Pac.  Co 517 

San  Bernardino  Co.  v.  Southern  Pac.  R.  R.  Co 537 

San  Bernardino  etc.  Ry.  Co.  v.  Haven 171 

Sanborn  v.  Belden 170 

Sanborn  v.   Superior  Court 338 

Sanchez  v.  Fordyce 374 

San  Chung,  In  re 448 

Sanders  v.  Sehorn 375 

San  Diego,  In   re 510 

San  Diego  v.  Dauer 355 

San  Diego  v.  Higgins 525 

San  Diego  v.  Linda  Vista  Irr.  Dist 523 

San  Diego  Co.  v.  Riverside  Co 369,  537 

San  Diego  Co.  v.  Schwartz 373 

San  Diego  Water  Co.  v.  San  Diego 170,  565 

San  Diego  etc.  Co.  v.  Soutlier 568 

San  Diego  etc.  Ry.  Co.  v.  State  Board 545 

Sanford  v.  Head 319 


TABLE  OF  CASES  CITED.  xlix 

Page 
Sanf ord  v.   Maxwell 576 

San  Francisco  v.  Anderson 516,   521 

San  Francisco  v.  Bank    558 

San  Francisco  v.  Bicdenian    177 

San  Francisco  v.  Broderick 264,  373,  457 

San  Francisco  v.  Canavan    378 

San  Francisco  v.  Central  Fac.  E.  R.  Co 536 

San  Francisco  v.  Collins    1"0 

San  Francisco  v.  Dunn     240 

San  Francisco  v.  Flood    516 

San  Francisco  v.  Fry   516,  520 

San  Francisco  v.  Hyatt   356 

San  Francisco  v.  Kiernan 165,   247,   260,  475 

San  Francisco  v.  La   Societe   etc 517 

San  Francisco  v.  Liverpool  etc.  Co 442,  452,  453 

San  Francisco  v.  Lux    536 

San  Francisco  v.  Pacific  Tel.  &  Tel.  Co 545 

San  Francisco  v.  Spring  Valley  W.  W 

xiii,  144,  184,  243,  244,  254,  477,  478,  517,  521 

San  Francisco  v.  Talbot    516 

San  Francisco  v.  Western  Union  Tel.  Co 519 

San  Francisco  &  S.  J.  V.  Ey.  Co.  v.  Stockton 537,  538 

San  Francisco   etc.   Agency   v.   Miller 484 

San  Francisco   etc.   Factory  v.   Brickwedel 566 

San  Francisco  etc.  E.  E.  Co.  v.  Caldwell 166,  171 

San  Francisco  etc.  Ey.  Co.  v.  Scott 537 

San  Francisco  etc.  R.  R.  Co.  v.  State  Board 246,  262,  521,  535,  537 

San  Francisco  etc.  R.  R.  Co.  v.  Taylor 171 

San  Francisco    Gas   Co.   v.   Brickwedel 464 

San  Francisco  Gas  Light  Co.  v.   Dunn 470 

San  Francisco  Lumber  Co.  v.  Bibb 129 

San  Francisco  Nat.  Bank  v.  Dodge 500 

San  Francisco  Pav.  Co.  v.  Bates 162,  173,  474,  524 

San  Francisco  Sav.  Union  v,  Abbott 602 

San  Gabriel  Valley  etc.  Co.  v.  Witmer  Bros vii,  529 

San  Gorgonio  Water  Co.,  In  re 509 

San  Joaquin  etc.  Irr.  Co.  v.  Merced  Co 517,  536,  567 

San  Joaquin  etc.  Irr.  Co.  v.  Stanislaus  Co 563 

San  Joaquin  etc.  Irr.  Co.  v.  Stevinson 171 

San  Jose  v.  San  Jose  etc.  R.  R.  Co 523 

San  Jose  Ranch  Co.  v.  San  Jose  etc.  Co 155,  156,  301 

San  Jose  Sav.  Bank  v.  Pharis 484 

San  Luis  Obispo     Co.  v.  Darke    ix,  374 

San  Luis  Obispo  Co.  v.  Farnum 459 

San  Luis  Obispo  Co.  v.  Felts 357,  538 

San  Luis  Obispo  Co.  v.  Graves 143,  261,  370,  373,  442 

San  Luis  Obispo  Co.  v.  Greenberg 450 

San  Luis  Obispo  Co.  v.  Linias 316 

San  Luis  Obispo  Co.  v.  Murphy 146,  185,  262,  372 

San  Luis  Water  Co.  v.   Estrada 478 

San  Mateo  County  v.  Coburu 172 

San  Mateo   Waterworks   v.    Sharpstein 170 

San  Pedro  etc.  E.  R.  Co,  v.  Hamilton 570 

Santa  Ana  v.  Brunner   171 

Santa  Ana  v.   Gildmacher 345 

Santa  Ana  v.  Santa  Ana  Valley  Irr.  Co 442 


1  TABLE  OF  CASES  CITED. 

Page 

Santa  Barbara  v.  Eldred 327,  338 

Santa  Barbara  v.  Sherman 347 

Santa  Barbara  v.  Stearn  s 325,  522 

Santa  Clara  Co.  v.  Southern  Pae.  K.  E.  Co 527,  537 

Santa  Cruz  v.  Enright 256,  38l 

Santa  Cruz  v.  Wykes 465 

Santa  Cruz  Kock  etc.  Co.  v.  Lyons 161 

Santa  Cruz  etc.  Co.  v.  Santa  Clara 310 

Santa  Paula  v.  Santa  Clara  etc.  Co 442,  509 

Santa  Eosa  v.  Bower 417 

Santa  Eosa  v.  Coulter 157 

Santa  Eosa  City  E.  E.  Co.  v.  Central  St.  Ey.  Co 294 

Santa  Eosa  Nat.  Bank  v.  Barnett 478,  481,  482 

Saner,  Ex  parte 312 

Saunders   v.   Haynes 326 

Savings  etc.  Soc.  v.  Austin 212,  372,  517,  520,  533 

Savings  etc.  Soc.  v.  San  Francisco 528 

Schaezlein  v.  Cabaniss 211 

Schaffer  v.  Smith 163 

Schamblin  v.  Means 284 

Schostag  V.  CatoT 195,  257 

Schroeder  v.  Grady 534 

Schuler,  In  re 249,  262 

Schumaker  v.  Toberman 161,  453 

Schwartz  v.  Wilson 464 

Scollay  V.  Butte 212 

Scott  V.  Boyle 146,  212,  262,  264,  265,  374,  449,  458 

Scott,  Magner  &  Miller  v.  Southern  Pac.  Co 499,  500 

Scott,  Magner  &  Miller  v.  Western  Pacific  Ey.  Co 499,  500,  505 

Seale  v.  Ford 601 

Seale  v.  Mitchell 291,  300 

Searcy   v.    Grow 236 

Seattle  Coal  etc.  Co.  v.  Thomas 325 

Second  Nat.  Bank  of  Titusville  v.  Caldwell 558 

Security  Sav.  Bank  v.  San  Francisco 517 

Security  Sav.  etc.  Co.  v.  Hinton 381,  416,  453 

Selnia  v.  Brewer 448 

Seube,  Ex  parte 455 

Sharp  V.  Blankenship 155 

Sharp  V.  Contra  Costa  Co 177,  366 

Sharon  v.  Sharon viii,  309 

Shaughnessy  v.  American  Surety  Co 259,  590 

Shaw  V.  Statler 465 

Shealor  v.  Superior  Court 338 

Sheehan  v.  Scott 209,  416,  433,  584 

Shepard,  In  re 235 

Sherer  v.  Superior  Court 329,  330 

Sherman  v.  Buick 167 

Sheward  v.   Citizens'  Water   Co 565,   566 

Shoemaker,  In  re 311 

Shrader,  Ex  parte 130,  174,  198,  199,  441,  447 

Sic,  In  re 442 

Siddall  V.  Harrison 320 

Siemessen  v.  Bof  er 182 

Sierra  Union  etc.  Min.  Co.  v.  Wolff 307 

Sievers  v.  San  Francisco 169 


TABLE  OF  CASES  CITED.  11 

Page 

Simmons  t.  Brainard ^ 305 

SimoDs  V.  Bedell 319,  323 

Sing  Lee,  Ex  parte 4-11,  449 

Sinton   v.   Ashbury 383,   452 

Sixth  District  Agr.  Assn.  v.  Wright 274 

Skillman  v.  Lachman 304 

Skinner  v.  Buck 157 

Slocum  V.  Bear  Valley  Irr.  Co 258 

Smails  v.  White 252 

Small  V.  Gwinn 337 

Smilie  v.  Fresno  County 465 

Smith,    Ex    parte 174 

Smith,  In  re    444,  445,  446,  470 

Smith,  Mnttcr  of 317 

Smith  V.  Andrews 321 

Smith  V.  Broderick 4G4,  465 

Smith  V.  Brown    593 

Smith  V.  Dunn 264,  275 

Smith  V.  Farrelly    524 

Smith  V.  Kenfield    264,  348 

Smith  V.  McDermott 254,  260,  598 

Smith  V.  Morse    176,   179 

Smith  V.  Oakland    310 

Smith  V.  Omnibus  R.   R.   Co 339 

Smith  V.  Roberts    576 

Smith  V.  St.  Lawrence  Co 226 

Smith  V.  Strother 198,  199 

Smith  V.    Westerfield 321 

Smith  Keating,  Ex  parte 130,  142,   145,  447 

Smith's   Case 228 

Socialist  Party  v.  Uhl 188,  195,  244,  585 

Sohler  v.  Sohier 321 

Sohncke,  Ex  parte 144,  185,  259 

Solano  Co.  v.  McCudden 142 

Solomon,  Ex  parte 443 

Solomon  v.  Reese 304,  318 

Somers  v.  State 592,  593 

Sonoma  A^alley  Bank  v.  Hill 483 

Sonora  v.  Curtin 451 

Soon  Hing  v.  Crowley 449 

Soto,  Ex  parte 340 

Southern  Cal.  Lumber  Co.  v.  Peters xi,  591 

Southern  Cal.  M.  T.  Co.  v.  Lincoln  University 322 

Southern  California  Mountain  Water  Co.  Lease,  In  re 474 

Southern  Cal.  Ry.  Co.  v.  Superior  Court 307 

Southern  Pac.  Co.,  In  re 500 

Soutliern  Pac.  Co.,  In  re  Canceling  Items 505 

Southern  Pac.  Co.  v.  Pomona 247 

Southern  Pac.  R.  R.  Co.  v.  Pixley 326 

Southern  Pac.  R.  R.  Co.  v.  Reed 166 

Southern  Trust  Co.  v.  Los  Angeles 546 

South  Pasadena  v.  Los  Angeles  Terminal  Ry.  Co 445,  449 

South  Pasadena  v.  Pasadena  Land  etc.  Co 471,  489 

South  San  Joaquin  Irr.  Dist.,  In  re  Bonds  of 245,  248 

Southwestern  Tel.  &  Tel.  Co.  v.  Dallas 22] 

Southwick  V.  Davis 574 


lii  TABLE  OF  CASES  CITED. 

Page 

Sparks,  Ex  parte 290,  418,  432 

Spaulding  v.  Mead 227 

Spear  v.  Beeves 280,  573 

Speegle  v.   Joy 600 

Spencer,  In  re x,  xiii,  145,  257,  448 

Spencer  Creek  etc.  Oo.  v.  Vallejo 290,  325,  326 

Spier  V.  Baker 192,  194,  245,  259,  588 

Spinney  v.  Griffith 590 

Spouogle  V.  Curnow 593 

Spreckels  v.  Hawaiian  Com.  etc.   Co 319 

Spring  Valley  Water  Co.  v.  San  Francisco 546 

Spring  Valley  W.  W.  v.  Barber 516 

Spring  Valley  W.  W.  v.  Bartlett 566 

Spring  Valley  W.  W.  v.  Bryant 477 

Spring  Valley  W.  W.  v.  Drinkhouse 169 

Spring  Valley  W.  W.  v.  San  Francisco 

175,  211,  319,  469,  478,  546,  561,  562,  564,  565,  566,  600 

Spring  Valley  W.  W.  v.  Scbottler 470,  516,  522,  567 

Stafford  v.  Lick 179 

Stanford,  Estate  of 241,  263,  273 

Stanford   v.  San  Francisco 169 

Stanislaus  Water  Co.  v.  Bachman 562 

Stanley  v.  Supervisors  of  Albany  Co 560 

State  V.  Boyd    235 

State  V.  Brandt    593 

State  V.  Brassfield    251 

State  V.  Central  Pacific  R.  Co 536 

State  V.  Collier    588 

State  V.  Cunningham   226,  227 

State  V.  Doiou    viii 

State  V.  Dudley 226 

State  V.  Dustin    588 

State  V.  Langworthy    221 

State  V.  McCauley 135,  572,  573 

State  V.  Pacific  States  Tel.  &  Tel.  Co 221,  222 

State  V.  Pacific  Tel.  &  Tel.  Co 221 

State  V.  Portland  Ey.,  Light  &  Power  Co 221 

State  V.  Purdy    588 

State  V.  Eoac'h    221 

State  V.  Rogers   182 

State  V.  Russell    221 

State  V.  Schluer 220 

State  V.  Sloan  277 

State  V.  Smith 182,  355 

State  V.  Steamship  Constitution 580,  582 

State  Census,  In  re 226 

State  Freight  Tax  Case 551 

State  Railroad  Tax  Cases 54& 

State  Savings  etc.  Bank  v.  Anderson 158 

Staude  v.  Board  of  Election  Commrs ix,  198,  199,  381 

Stein   v.   Howard 489 

Steinhart  v.  Superior  Court 169 

Stephen,  Ex  parte 442,  451 

Stern  v.  Berkeley 2G4,  417,  434 

Stevens,  In  re 290 

Stevens  v.  Kobayshi 252 


TABLE  OF  CASES  CITED.  liii 

Pa.^G 
Stevens  v.  Truman 199 

Stevenson  v.  Colgan x,   272 

Stewart  v.  Kvser 196 

Stewart   v.   Torrance 309,   311 

Stillwell   V.   Cutler 2fi9 

Stilphen  v.  Ware "183 

Stimson  Mill  Co.  v.  Braun 128,  130,  157,  590 

Stimson  Mill  Co.  v.  Nolan 130,   157,  591 

Stockton  V.  Ins.  Co 382,  531 

Stockton  Gas  etc.  Co.  v.  San  Joaquin  Co 469,  530 

Stockton  L.  Co.  v.   Schuler 306,   312 

Stockton  School  Dist.  v.  Wright 357 

Stockton  etc.  E.  Co.  v.  Galgiana 170,  307 

Stockton  etc.  E.  E.  Co.  v.  Stockton xi,  xii,  166,  167,  491,  522 

Stoltenberg,  In  re 146,  186,  214 

Stone  V.  Elkins 198 

Stoppelkamp  v.  Mangeot 339 

Storke  v.  Goux 437 

Stratman,  Ex  parte 290,  291 

Stuart,  In  re 451,  596,  598 

Sullivan  v.  Gage    277 

Sullivan  v.  Market  St.  Ey.  Co 345 

Summerfield   v.   Dow 375 

Summerland  v.  Bicknell 144,  374,  376 

Summers  v.  Hammell 180 

Sunset  Tel.  &  Tel.  Co.  v.  Pasadeua 385,  472 

Supervisors  v.  Stanley 558 

Sutherlaml   v.    Sweem 340 

Sutro,  Estate  of -■ 587 

Suydam  v.  Moore 496 

Swamp  Land  Dist.  No.  150  v.  Silver 37S 

Sweet  V.  Tice 304 

Sweetman,  Ex  parte 382,  443 

Swift  V.  Board  of  Supervisors 157 

T 

Talbott  V.  Silver  Bow  County 556,  559 

Tay  V.  Ilawley 159 

Taylor,  Ex  parte 382,  443 

Taylor  v.   Beckham 223 

Taylor  v.  Hill 158 

Taylor  v.  Mott 273,  275 

Taylor  v.  Palmer 161,  162,  172,  173,  453,  474,  515,  523,  524 

Taylor  v.  Eeynolds 137 

Taylor  v.  Taintor 132 

Tehama  Co.  v.  Bryan 171 

Tehama  v.  Sisson 467 

Teralta  Land  etc.  Co.  v.  Shaffer 178 

Terrett  v.  Taylor 132 

Thayer  v.  California  Development  Co 563 

The"  Boca  Mill  Co.  v.  Curry 477,  4S.S 

Thistleton,  Ex  parte 301 

Thorn  V.  Los  Angeles 3/o 

Thomas,  Ex  parte 251 

Thomas  v.  Anderson 31 S 

Thomas  v.  Justices'  Court 325,  339 


liV  TABLE  OF  CASES  CITED. 

Page 

Thomas  r.  Matthiessen 480,  493 

Thomas  v.  Thomas 307 

Thomason  v.  Ashworth 381,  475,  578 

Thomason  v.  Eiigjjles viii,    381,    475,    578,  600 

Thompson  v.  San  Francisco  Gas  etc.  Co 143 

Thompson  v.  The  San  Diego  El.  Ky.  Co 474 

Thompson  v.  Williams 300,  330 

Thomson  v.  Pacific  Eailroad 548 

Thornton  v.  Hooper 176,  177 

Thresher  v.  Atchison 178 

Thurston  v.  Clark 153 

Tingley  v.  Times-Mirror  Co 494 

Title  Guarantee  etc.  Co.  v.  Eailroad  Commission.  ..  .444,  473,  509,  560 

Title  Ins.  &  Trust  Co.  v.  Lusk 180,  258 

Title  etc.  Eestoration  Co.  v.  Kerrigan x,  160,  248,  257,  290 

Toland,  Ex  parte 602 

Toland  v.  Earl 320,  323 

Tolman  v.  Smith 328 

Tomlinson,  In  re 324 

Tomsky  v.  Superior  Court 159,  322 

Tonawanda  v.  Lyon 162,  173 

Tout  V.  Blair 373 

Town  etc.  v.  Frieze 252 

Townsend  v.  Brooks 330 

Tracy  v.  Muir 160 

Traf ton  v.  Quinn 420 

Trahern  v.  San  Joaquin  Co 170 

Treadwell  v.  Yolo  Co 439 

Tref  ts  V.  McDougald 386 

Tregea  v.  Owens 524,  528 

Trezevant  v.  W.  E.  Strong  Co 494 

Tribune  etc.  Co.  v.  Barnes 251 

Trinity  Co.  v.  Mendocino  Co 199,  370 

Trippet  v.  State 160,  274 

Trumbull's  Case 227,  288 

Trumpler  v.  Trumpler 295 

Tucker  v.  Aiken 588 

Tucker  v.  Barnum 373,  374 

Tulare  v.  Hevren 260,  316,  317 

Tulare  Co.  v.  Jefferds 437 

Tulare  Co.  v.  Kings  Co 368 

Tulare  Co.  v.  May 144,  261,  263,  264,  265,  266,  370,  375,  457 

Tuolumne  Eedemption  Co.  v.  Sedgwick 178 

Turloek  Irr.  Dist.  v.  Williams 166,  515 

Turner,  In  re 182 

Turner  v.  Fidelity  Loan  Concern 490 

Turner  v.  Siskiyou  Co 143,  261,  373 

Turney  v.  Marshall 227,  288 

Tuskaloosa  etc.  Co.  v.  Olmsted 252' 

Tuttle,  Ex  parte 441,  447 

Tuttle  V.  Block 178 

Tyler  v.  Houghton 133,  310 

Tyler  v.  Tehama  County 169 


TABLE  OF  CASES  CITED.  Iv 

U  Page 

Ukiah  V.  The  Snow  Mountain  Water  &  Power  Co 178,  474 

Underhill  v.  Santa  Barbara  etc.  Imp.  Co 489 

Union  Ice  Co.  v.  Eose 259,  37S 

Union  P.icific  R.  R.  Co.  v.  Peniston 548,  54& 

Union  etc.  Co.  v.  Superior  Court 820 

United  Real  Estate  etc.  Co.  v.  Barnes 158 

United  States  v.  Ballin 228 

United  States  v.  Cooper 229 

United  States  v.  Greathouse 183 

United  States  v.  Hanway 183 

United  States  v.  Hartwell 593 

United  States  v.  Rhodes 132 

University  of  California  v.  Bernard xi,  251,  252 

Upham  V.  Supervisors 210,  367 

Uridias  v.  Morrill 200,  291 

Urton  V.  Wilson 575 

Urton  V.  Woolsey 328 

V 

Vail  V.  San  Diego  Co 142,  255,  264,  374 

Valle  V.   Shaffer 448 

Vallejo  Ferry  Co.  v.  Lang  &  McPherson 143,  254 

Vallejo  etc.  R.  R.  Co.  v.  Reed  Orchard  Co 136,  173,  258,  314,  315,  569 

Van  Alstine  v.  Frear 221 

Vance  Redwood  Lumber  Co.  v.  Durphy 531 

Vanderhurst  v.  Tholcke 44G 

Van  Harlingen  v.  Doyle 144,   185 

Van  Ness  v.  Rooney 381 

Van  Valkenburg 191 

Varney  &  Green  v.  Williams 174,  450 

Vassault  v.  Austin 291 

Vaughn  v.  English 281,  593 

Venice  v.  Lawrence 467 

Ventura  Co.  v.  Clay 318    455 

Vernon  v.  Board  of  Supervisors 383 

Vernon  v.  Los  Angeles  Gas  etc.  Corp 472 

Vernon  School  Dist.  v.  Board  of  Education 249,  256,  380 

Vilhac  v.  Stockton  etc.  R.  R.  Co 170 

Voll,   Ex   parte 134 

Von  Hoffman  v.  Quincy 132 

Votan  V.  Reese 304 

Vulicevich  v.  Skinner 345 

W 

Waechter  v.  Atchison 495 

Wagner,  Ex  parte 221 

Waite  V.  Santa  Cruz 256 

Waldron  v.  Rensselaer  etc.  R.  R.  Co 496 

Walkerly,  Estate  of 309 

Wall,    Ex    parte 210,  371 

Wallingf ord.  Ex  parte 329 

Walser  v.  Austin 144,  262,  370,  375 

Walsh  V.  Mathews 172,  523,  524,  525 

Walther  v.  Rabolt 132,   181 


Ivi  TABLE  OF   CASES  CITED. 

Page 

Ward  V.  Flood 355 

Ware  v.  Robinson 158 

Warner  v.  Hall 301 

Warner  v.  Kelly 301 

Warren  v.  San  Francisco 518 

Washington  v.  Black 323 

Washiuiiton     v.  Page     ix,  24o 

Waterloo  etc.  Road  Go.  v.  Cole 477 

Watt  V.  Wright 316 

Weaver  v.  Reddy 383 

Weaver  v.  San  Francisco 464,  465,  467 

Webb  V.  Hanson 312 

Weber,  In  re 257 

Weber  v.  Santa  Clara  Co 170 

Webster  v.  Bell 550,  551 

Webster  v.  Board  of  Regents 518,  529 

Weiderkind   v.   Tuolumne   Water   Co 345 

Weill  V.  Kenfield vii,  231 

Welch  V.  Strother 465 

Weldon  v.  Rogers 157 

Weldon  v.  Superior  Court 309 

Wells,  Ex  parte 351 

Wells  v.  Black 481,  482 

Wells  V.  Torrance 329,  330 

Wells,  Fargo  &  Co.  v.  Board  of  Equalization 535 

Wells,  Fargo  &  Co.  v.  Enright    483 

Welsh  V.  Bramlet 144,  261,  264,  370,  372,  373,  374,  375,  437 

Welsh  V.  Cross 175,  178 

Werner,  In  re 249,  442 

Westenberg,  In  re 140,  291,   340,  382,  434 

Westerfield,  Ex  parte 259 

Western  Meat  Co.  v.  Superior  Court 139 

Western  Pac.  Ry.  Co.  v.  Godfrev 480,  483 

Western  Union  Tel.  Co.  v.  Hopkins 143,  472,  478,  487 

Western  Union  Tel.  Co.  v.  Superior  Court 493 

Western  Union  Tel.  Co.  v.  Taggart 549,  555 

Western  Union  Tel.  Co.  v.  Texas   551 

Western  Union  Tel.  Co.  v.  Visalia 519 

Western  etc.  Co.  v.  Knickerbocker 213,  256 

Westinghouse  Electric  Co.  v.  Chambers 242,  270,  277,  546 

West  Phil.  Pass.  R.  R.  Co.  v.  Union  Pass  R.  Co 230 

Wheeler  v.  Donnell 311 

Wheeler  v.  Herbert 185,  192,  260,  369,  457 

Whitbeck   v.   Mercantile   Nat.   Bank 559 

White,  Ex  parte 447 

White  V.  Lighthall 301 

Whitehurst   v.    Stuart 484 

Whiteman  v.  Wilmington  etc.  R.  R.  Co 283 

Whiting  V.  Haggard 600 

Whiting  V.  Quackenbush 162,   173,   474,  524 

Whiting  V.   Townsend 162,    173,    199,   474,  524 

Whitley,  Ex  parte 184,  200,  257 

Wliitney,  In  re 226 

Whitwell,  Ex  parte 449 

Wickersham  v.  Brittan 326,  599,  606 

Wigmore    v.   Buell 142,  144,  254 


TABLE  OF  CASES  CITED.  Ivil 

Page 

Wilcox  V.  Engebretsen 173 

Wilcox  V.  Oakland 328 

Will  V.  Sinkwitz 330 

Willard  V.   Superior  Court 148,  163 

Willcox   V.   Edwards 269 

Williams,    Ex    parte 260,  261,  602 

Williams  v.  Board   of   Trustees 385 

Williams  v.  Corcoran   522,  524 

Williams  v.  Garey 439 

Williams  v.  Hawkins 334 

Williams  v.  Wheeler   361 

Williams  v.  Williams    320 

Willis  V.  Farley   309 

Willow  Land  Co.  v.   Goldsclimidt 305 

Wills   V.    Austin xiii,  161,  533 

Wilmerding,  In  re 515 

Wilmington  Transp.  Co.  v.  Railroad  Commission 505 

Wilson   V.  Roach 300,  322 

Wiison  V.  Supervisors    520 

Winchester,    Estate    of 250 

Winchester  v.  Howard    485 

Winchester  v.  Mabury    485 

Winona  Wagon  Co.  v.  Bull 482 

Winona  etc.  R.  R.  Co.  v.  Waldron 496 

Winrod   v.    Welters 318 

Winslow,  Estate  of 309 

Winter  v.  Fitzpatrick 310 

Wisconsin  &  Michigan  Ry.  Co.  v.  Powers 555 

Wittman  v.  Police  Court 137,  138 

Wittmeier,   Estate   of 309 

Welters,  Ex  parte 451 

Wong  Hane,  In  re 443 

Wong  You  Ting,  Ex  parte 137 

Wong  Wing,  In  re 214 

Wood  V.  Calaveras  Co 146,  263 

Wood  V.  Election    Commrs 245,  387 

Woodland  v.  Leech 372,  386 

Woodruff  V.  Baldwin 251 

Woods,  In  re 291,  337,  342 

Woods  V.  Potter 438 

Woods  V.  Varnum 136,  234 

Woodward  v.  Fruitvale  Sanitary  Dist xi,  214,  454,  456 

Wooley  V.  Butler 229 

Wratten  v.  Wilson 338 

Wright  V.  Central  etc.  Water  Co 491 

Wright  V.  Del  Norte  Co 319 

Wright  V.  Langenour    593 

Wright  V.  Sonoma  Co 305,  312 

Wright  V.  Superior  Court 316 

Wulzen  V.  Board  of  Supervisors 155,  159,  198 

Wyatt    V.   Arnot 1 349 

Wyckoff  V,  Southern  Pac.  Co 345 

Wysinger  v.  Crookshank 355 

Y 

Tale,  Ex  parte 584 

Yarnell  v.  Los  Angeles 456,  459 


Iviii  TABLE  OF  CASES  CITED. 

Page 

Yick  Wo,  In  re 447 

Yick  Wo  V.  Hopkins 447 

Yolo  Co.  V.  Colgan 229,  231 

Yolo  County  v.  Dunn 240 

Yolo   Co.  V.  Sacramento 320 

York  County  v.  Dalhousen 351 

Yosemite  Stage  etc.  Co.  v.  Dunn 272,  273 

Youd  V.  German  Sav.  &  Loan  Soc 488 

Youle  V.  Thomas 576 

Young,  Ex  parte 155,  174,  448 

Young  V.  Kosenbaum    483 

Young  V.  Wright    340 

Yturburru,  Estate  of 256 

Yule  V.  Bishop 482 

Yun  Quong,  In  re 248 

Z 

Zabriskie  v.  Torrey 304 

Zander  v.   Coe 300,  337 

Zanone  v.  Sprague 250 

Zany,    In    re 303,  444 

Zhizhuzza,   In   re 142,  213,  448 


CONTENTS 

OP 

CONSTITUTION  OF  1879. 


AETICLE  I. 

DECLARATION  OP  RIGHTS. 

§     1.  Inaliena'ble  rights. 

§     2.  Political  power. 

§     3.  Relation  to  the  American  Union. 

§     4.  Religious  freedom. 

§     5.  Habeas  corpus. 

§     6.  Right  to  bail — Rights  of  witnesses. 

§     7.  Trial  by  jury. 

§     8.  Offenses,  how  prosecuted. 

§     9.  Liberty  of  speech  and  freedom  of  the  press — Trials  for  libel. 

§  10.  Popular  assemblies. 

§  11.  Uniformity  of  laws. 

§  12.  Military  power. 

§  13.  Personal  and  property  rights. 

§   14.  Eminent  domain. 

§  15.  Imprisonment  in  civil  cases. 

§  16.  Laws  prohibited — Bills  of  attainder,  ex  post  facto,  etc. 

§  17.  Rights  of  foreign  residents. 

§  18.  Slavery  prohibited. 

§  19.  Searches  and  seizures,  restriction  on. 

§  20.  Treason  defined. 

§  21.  Privileges  and  immunities  of  citizens. 

§  22.  Provisions  of  Constitution  construed. 

§  23.  Rights  retained  by  the  people. 

§  24.  Property  qualification  not  required. 

§  25.  Right  to  fish  upon  public  lands. 

§  26a.  Intoxicating  liquor  amendment. 


ARTICLE  n. 

RIGHT  OF  SUFFRAGE. 

§  1.  "Who  are  and  who  are  not  electors. 

§  2.  Privileges  of  electors. 

§  2i.  Primary   elections. 

§  3.  Militia  duty,  privilege  of  electors. 

§  4.  Residence  of  voters,  gained  or  lost. 

§  5.  Election  by  ballot. 

§  6.  Voting  machines. 

(lix) 


IX  CONTENTS   OF    CONSTITUTION    OP    1879. 

ARTICLE  III. 

DISTRIBUTION  OF  POWEES, 

ARTICLE  IV. 

LEGISLATIVE   DEPARTMENT. 

§     1.     Senate  and  assembly,  and  enacting  clause — Initiative  and  ref- 
erendum. 
§     2.     Sessions  of  legislature. 

Election  and  term  of  assemblymen. 

Election  and  term  of  senators. 

Number  and  classes  of  senators. 

Senatorial  and  legislative  districts. 

Organization  of  legislature. 

What  number  constitutes  a  quorum. 

Rules  for  their  government — Expulsions. 

Each  house  to  keep  a  journal. 

Privilege  of  members. 

Vacancies,  how  filled. 

Open  doors  and  secret  sessions. 

Adjournment,  how  long  and  where  to. 

Origin  and  passage  of  bills. 

Approval  and  return  of  bills — Passage  over  veto. 

Impeachments,  presentment  and  trial  of. 

What  officers  liable  to  impeachment — Judgment  on. 

Member  ineligible  to  office  created  during  the  term. 

Who  ineligible  to  office  under  state  government — Proviso. 

Embezzlement  or  defalcation— Penalty  for. 

Public   moneys   and   accounts — Statement   of   receipts   and   ex- 
penditures— Panama-Pacific  International  Exposition. 
§  23.     Compensation  of  members  and  attaches. 
§  23a.  Officers,  employees  and  attaches. 

§  24.     Title  of  laws — Revision  and  amendment — Publication  of. 
§  25.     Local  and  special  laws  prohibited. 
§  25J.  Fish  and  game  districts. 
§  26.     Lotteries  prohibited — Purchase  and  sale  of  shares  of  stock  to 

be  regulated. 
§  27.     Congressional  and  senatorial  districts. 
§  28.     Elections  by  legislature  to  be  viva  voce. 
§  29.     General  appropriation  bill,  what  to  contain. 
§  30.     Eestriction  on  appropriations  and  grants  of  aid. 
§  31.     Credit  of  state  or  municipalities  not  to  be  loaned, 
§  32.     Extra  compensation  to  officers  forbidden. 
§  33.     Charges  of  gas  and  telegraph  corporations  to  be  regulated. 
§  34.     Special  appropriation  bill,  restriction  as  to. 
§  35.     Lobbying   defined — Punishment   for. 
§  36.     State  highways. 


§ 

3. 

§ 

4. 

§ 

5. 

§ 

6. 

§ 

7. 

§ 

8. 

§ 

9. 

§ 

10. 

§ 

11. 

§ 

12. 

§ 

13. 

§ 

14. 

§ 

15. 

§ 

16. 

§ 

17. 

§ 

18. 

§ 

19. 

§ 

20. 

§ 

21. 

§ 

22. 

CONTENTS    OF    CONSTITUTION    OF    1879.  Ixi 

ARTICLE  V. 

EXECUTIVE  DEPARTMENT. 

§     1.  Executive  power  vested  in  governor. 

§     2.  Election  of  governor  and  term  of  office. 

§     3.  Eligibility  and  qualifications. 

§     4.  Eeturns  of  election — Counting  votes. 

§     5.  Governor  to  be  commander-in-eliief  of  militia. 

§     6,  Executive  business  of. 

§     7.  To  see  that  laws  are  executed. 

§     8.  To  fill  vacancies  in  office. 

§     9.  When  to  convene  special  sessions. 

§  10.  Messages  to  legislature. 

§  11.  When  to  adjourn  legislature. 

§  12.  Disability  to  hold  other  offices. 

§  13.  Keeper  of  seal  of  state. 

§  14.  To  sign  and  seal  grants  and  commissions. 

§  15.  Lieutenant-governor — Election  of,  etc. 

§  16.  When  powers  of  governor  devolve  on. 

§  17.  State  officers — Election  and  terms  of  office. 

§  18.  Secretary  of  state — Duties  of. 

§   19.  Compensation  of  state  officers. 

§  20.  United  States  senators,  how  elected. 


ARTICLE  VL 

JUDICIAL   DEPARTMENT. 

§     1.  Judicial  powers. 

§     2.  iSupreme  court,  how  constituted. 

§     3.  Election  of  supreme  justices. 

§     4.  Jurisdiction  of  supreme  court  and  courts  of  appeal. 

§     4^.  Harmless  errors  to  be  disregarded. 

§     5.  Superior  court,  jurisdiction. 

§     6.  Superior  court,  how  constituted. 

§     7.  Superior  judges,  apportionment  of  business. 

§     8.  Judge  may  hold  court  in  other  county — Judge  pro  tempore. 

§     9.  Leave  of  absence — Limitation  of  time. 

§   10.  Justices  and  judges,  how  removed. 

§  11.  Justices  of  the  peace,  provision  for. 

§   12.  Courts  of  record. 

§  13.  Jurisdiction  of  inferior  courts  to  be  fixed  by  legislature. 

§   14.  Clerks  of  courts  and  court  commissioners. 

§  15.  Judicial  officers  not  to  receive  fees  and  perquisites. 

§  16.  Supreme  court  opinions  to  be   published. 

§  17.  Compensation  of  justices  and  judges. 

§  18.  Justices  and  judges  ineligible  to  other  offices. 

§  19.  Charges  to  juries. 

§  20.  Style  of  process. 

§  21.  Clerk  and  reporter. 


Ixii  CONTENTS  OF   CONSTITUTION   OF    1879. 

§  22.  Judges  not  to  practice  law. 

§  23.  Eligibility  of  justices  and  judges. 

§  24.  Condition   precedent  to   draft   of  salarj. 

§  25.  Supreme  court  commission. 


AETICLE  VII. 

PAKDONING  POWEE. 

ARTICLE  VIII. 

MILITIA. 

1.  Organization  and  calling  forth  of. 

2.  Device,  banner,  or  flag  to  be  used. 

ARTICLE  IX. 

EDUCATION. 

1.  Promotion  of  intellectual  improvement. 

2.  Superintendent   of  public  instruction. 

3.  County  superintendents  of  schools. 

4.  School  funds,  source  and  o-rigin,  and  how  appropriated. 

5.  System  of  common  schools  to  be  provided. 

6.  School  system,  what  to  include. 

7.  State  and  local  boards  of  education — Text-books. 

8.  Sectarianism  prohibited. 

9.  University  fund,  creation,  management,  and  application  of. 

10.  Leland  Stanford  Junior  University. 

11.  The  California  School  of  Mechanical  Arts. 

12.  The  California  Academy  of  Sciences. 

13.  Cogswell  Polytechnical  College. 


ARTICLE  X. 

STATE  INSTITUTIONS  AND  PUBLIC  BUILDINGS. 

§  1.  State  prison  directors,  appointment  and  term  of  office. 

§  2.  Authority  and  duties  of. 

§  3.  Power  of  appointment  of  employees. 

§  4.  Allowance  for  expenses. 

§  5.  Powers  and  duties  to  be  regulated  by  law. 

§  6.  Convict  labor  to  be  regulated. 


CONTENTS   OF    CONSTITUTION    OF    1879.  Ixiii 

ARTICLE  XI. 

CITIES,  COUNTIES,  AND  TOWNS. 

§     1.     Counties  as  subdivisions  of  the  state. 

§     2.     Eemoval  of  county  seats. 

§     3.     New  counties,  establishment  of. 

§     4.     County  governments  to  be  uniform,  under  general  laws. 

§     5.     Boards  of  supervisors,  election  and  appointment  of. 

§     6.     Municipal  corporations  to  be   formed  under  general  laws. 

§     7.     City  and  county  governments  may  be  consolidated. 

§     7^.  Freeholders'  charters  for  counties. 

§     8.     City  or  city  and  county  charters,  how  framed  and  ratified. 

§     8i.  City  or  city  and  county  charters,  to  contain  what. 

§     8a.  Panama-Pacific  International  Exposition. 

§     9,     Compensation  of  officers. 

§  10.     State  taxes,  no  release  or  discharge  from. 

§  11.     Local  police,  sanitary,  and  other  regulations  may  be  enforced. 

§   12.     Assessment  and  collection  of  taxes. 

§  13.     Powers  not  to  be  delegated  to  special  commission,  etc. 

§  13i.  Payment  of  bonds. 

§  14.     Inspection  officers,  appointment  of. 

§  15.     Private  property  not  liable  for  corporate  debt  of  municipality. 

§  16.     Moneys,  etc.,  to  be  deposited  with  treasurer. 

§  16J.  Deposit  of  public  moneys. 

§  17.     Making  profit  out  of  public  funds  a  felony. 

§  18.     Kestriction  on  power  to  incur  indebtedness. 

§  19.     Municipal  ownership  of  public  utilities. 

ARTICLE  XIL 

CORPORATIONS. 

§  1.  Corporations  to  be  forrred  under  general  laws. 

§  2.  Dues  to  be  secured  by  individual  liability,  etc. 

§  3.  Stockholders  to  be  individually  liable. 

§  4.  Corporations  construed. 

§  5.  Banking  prohibited. 

§  6.  Existing  charters,  when  invalid. 

§  7.  Charters  not  to  be  extended,  nor  forfeiture  remitted. 

§  8.  All  franchises  subject  to  the  right  of  eminent  domain. 

§  9.  Restrictions  on  powers  of  corporations. 

§  10.  Liabilities  of  franchise  under  lease  or  grant. 

§  11.  Corporation  stock,  restriction  on  issue  of. 

§  12.  Election  of  directors — Cumulative  or  distributive  votes. 

§  13.  State  not  to  loan  its  credit  nor  subscribe  to  stock  of  corpora- 
tions. 

§  14.  Corporations  to  have  office  for  transaction  of  business  in  stocks. 

§  15.  Foreign  corporations,  conditions. 

§  16.  Corporations,  where  to  be  sued. 

§  17.  Transportation  companies,  rights  and  liabilities  of. 

§  18.  Officers  of  corporations,  restriction  as  to  interests. 


IxiV  CONTENTS   OF   CONSTITUTION   OF    1879. 

§  19.  Free  passes  on  railroads  prohibited  to  state  officials. 

§  20.  Fares  and  freights  to  be  regulated  by  government. 

§  21.  Discrimination  in  charges  by  carriers  forbidden. 

§  22.  Eailroad  commission,  organization  of. 

§  23.  Railroad  commission,  regulation  of  public  utilities. 

§  23a.  Eailroad  commission  power  in  eminent  domain. 

§  24.  Legislature  to  pass  laws  to  enforce  this  article. 


ARTICLE  XIII. 

EEVENUE  AND  TAXATION. 

§     1.     Taxation  to  be  in  proportion  to  value. 

§     la.  Colleges  exempt  from  taxation. 

§     li.  United  States  army,  navy,  marine  and  revenue  service, 

§     li.  Churches  exempt  from  taxation. 

§     If.  Bonds  of  state  and  municipalities  exempt  from  taxation. 

§     2.     Land  and  improvements  to  be  separately  assessed. 

§     3.     Sectionized  and  unsectionized  land,  how  assessed. 

§     4.     Securities,  taxable.     (Repealed.) 

§     4a.  Vessels  exempt  from  taxation. 

§     5.     Contract  of  borrower  to  pay  tax  on  loan  void. 

§     6.     Power  of  taxation  cannot  be  surrendered. 

§     7.     Payment  of  taxes  by  installments. 

§     8.     Annual  statement  of  property  to  be  given. 

§     9.     State  board  of  equalization. 

§  10.     Property,  where  assessed. 

§  104.  Personal  property  to  extent  of  $100  exempt. 

§  11.     Income  taxes. 

§  12.     Poll  tax. 

§  12f.  Young  trees  and  vines  exempt  from  taxation. 

§  13.     Laws  to  be  passed  by  legislature. 

§  14.     Taxation  for  state  purposes. 


ARTICLE  XIV. 

.WATER   AND   WATER   EIGHTS, 

ARTICLE  XV. 

HAEBOE  FRONTAGES,  ETC. 

ARTICLE  XVL 

STATE  INDEBTEDNESS. 


CONTENTS    OF    CONSTITUTION    OF    1879.  IxV 

ARTICLE  XVn. 

LAND  AND  HOMESTEAD  EXEMPTION. 

§  1.     Homesteads. 

§  2.     Land  monopoly. 

§  3.     Lands  granted  only  to  actual  settlers. 

ARTICLE  XVIIL 

AMENDING  AND  REVISING  THE  CONSTITUTION. 

§  1.     Proposal    of   amendments— Submission   to   vote. 
§  2.     Revision — Convention    for. 

ARTICLE  XIX. 

CHINESE. 

§  1.  Protection  from  alien  paupers,  etc. 

§  2.  Corporations  prohibited  from  hiring  Chinese. 

§  3.  Public  works,  Chinese  not  to  be  employed  on. 

§  4.  Coolieism  prohibited — Removal  of  Chinese. 

ARTICLE  XX. 

MISCELLANEOUS    SUBJECTS, 

§     1.  Seat  of  government. 

§     2.  Dueling,  disabilities  arising  from. 

§     3.  Oath  of  office. 

§     4.  Election   and  appointment  of  officers  and  commissioners. 

ij     5.  Fiscal  year. 

§     6.  Suits  against  state. 

§     7.  Marriage  contracts,  validity  of. 

§     8.  Separate  property  of  husband  and  wife. 

§     9.  Perpetuities  not  allowed. 

§   10.  Disqualification  for  office  hy  giving  or  taking  bribe. 

§  11.  Exclusion   from   office,  jury,   and   right   of   suffrage   of   certain 

persons — Protection  of  right  of  suffrage. 

§  12.  Residence,  when  absence  not  to  affect. 

§  13.  Plurality  vote  to  elect. 

§  14.  State  board  of  health. 

§  15.  Mechanic's  lien. 

§  16.  Term  of  office,  duration  of. 

§  17.  Eight  hours  a  legal  day's  labor. 

§  17^.  Minimum  wage. 

§  18.  Sex  not  a  disqualification  for  business. 

§  19.  Payment  of  expenses  of  convention. 

§  20.  Election  of  officers — Term,   when  commences. 

§  21.  Laws  to  remain  in  force. 


Ixvi  CONTENTS   OF    CONSTITUTION   OF    1879. 

ARTICLE  XXI. 
BOUNDAEY. 

ARTICLE  XXIL 

SCHEDULE. 

§  1.  Laws  to  remain  in  force. 

§  2.  Recognizances,  obligations,  etc.,  unaffected. 

§  3.  Courts,  save  justices'  and  police  courts,  abolished — Transfer  of 

records,  books,  etc. 

§  4.  State  printing. 

§  5.  Ballots  to  be  printed. 

§  6.  Registers,  poll-books,  etc.,  to  be  furnished. 

§  7.  Who  entitled  to  vote  for  Constitution. 

§  8.  Canvass  of  returns  of  vote. 

§  9.  Computing  returns  of  vote. 

§  10.  Terms  of  officers  first  elected. 

§  11.  Laws  applicable  to  judicial  system. 

§  12.  Constitution,  when  to  take  effect. 

ARTICLE  XXIII. 
EECALL    OF   PUBLIC    OFFICIALS. 


CONSTITUTION 


OP  THE 


STATE  OF  CALIFORNIA. 


PREAMBLE  AND  DECLARATION  OF  RIGHTS. 

PEEAMBLE. 

We,  the  people  of  the  state  of  California,  grateful  to  Al- 
mighty God  for  our  freedom,  in  order  to  secure  and  per- 
petuate its  blessings,  do  establish  this  Constitution. 

ARTICLE  I. 
DECLAEATION  OF  EIGHTS. 

Section  1.  All  men  are  by  nature  free  and  independent, 
and  have  certain  inalienable  rights,  among  which  are  those 
of  enjoying  and  defending  life  and  liberty ;  acquiring,  pos- 
sessing, and  protecting  property ;  and  pursuing  and  obtain- 
ing safety  and  happiness. 

Sec.  2.  All  political  power  is  inherent  in  the  people. 
Government  is  instituted  for  the  protection,  security,  and 
benefit  of  the  people,  and  they  have  the  right  to  alter  or 
perform  the  same  whenever  the  public  good  may  require  it. 

Sec.  3.  The  state  of  California  is  an  inseparable  part 
of  the  American  Union,  and  the  Constitution  of  the  United 
States  is  the  supreme  law  of  the  land. 

Sec.  4.  *  The  free  exercise  and  enjoyment  of  religious 
profession  and  worship,  without  discrimination  or  prefer- 
ence, shall  forever  be  guaranteed  in  this  state ;  and  no  per- 
son shall  be  rendered  incompetent  to  be  a  witness  or  juror 
on  account  of  his  opinions  on  matters  of  religious  belief; 
but  the  liberty  of  conscience  hereby  secured  shall  not  be  so 
construed  as  to  excuse  acts  of  licentiousness,  or  justify  prac- 
tices inconsistent  with  the  peace  or  safety  of  this  state. 

Constitution — 1  (1) 


Art.  I,  §§  5-9  CONSTITUTION  OF  1879.  2 

Sec.  5.  The  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended  unless  when,  in  cases  of  rebellion  or  inva- 
sion, the  public  safety  may  require  its  suspension. 

Sec.  6.  All  persons  shall  be  bailable  by  sufficient  sureties, 
unless  for  capital  offenses  Avhen  the  proof  is  evident  or  the 
presumption  great.  Excessive  bail  shall  not  be  required; 
nor  excessive  fines  imposed ;  nor  shall  cruel  or  unusual 
punishments  be  inflicted.  Witnesses  shall  not  be  unreason- 
ably detained,  nor  confined  in  any  room  where  criminals  are 
actually  imprisoned. 

Sec.  7.  The  right  of  trial  by  jury  shall  be  secured  to  all, 
and  remain  inviolate ;  but  in  civil  actions  three-fourths  of 
the  jury  may  render  a  verdict.  A  trial  by  jury  may  be 
waived  in  all  criminal  cases  not  amounting  to  felony,  by  the 
consent  of  both  parties,  expressed  in  open  court,  and  in 
civil  actions  by  the  consent  of  the  parties,  signified  in  such 
manner  as  may  be  prescribed  by  law.  In  civil  actions  and 
cases  of  misdemeanor,  the  jury  may  consist  of  twelve,  or  of 
any  number  less  than  twelve  upon  which  the  parties  may 
agree  in  open  court. 

Sec.  8.  Offenses  heretofore  required  to  be  prosecuted  by 
indictment  shall  be  prosecuted  by  information,  after  exami- 
nation and  commitment  by  a  magistrate,  or  by  indictment, 
with  or  without  such  examination  and  commitment,  as  may 
be  prescribed  by  law.  A  grand  jury  shall  be  drawn  and 
summoned  at  least  once  a  year  in  each  county. 

Sec.  9.  Every  citizen  may  freely  speak,  write,  and  pub- 
lish his  sentiments  on  all  subjects,  being  responsible  for  the 
abuse  of  that  right;  and  no  law  shall  be  passed  to  restrain 
or  abridge  the  liberty  of  speech  or  of  the  press.  In  all 
criminal  prosecutions  for  libels,  the  truth  may  be  given  in 
evidence  to  the  jury ;  and  if  it  shall  appear  to  the  jury  that 
the  matter  charged  as  libelous  is  true,  and  was  published 
with  good  motives,  and  for  justifiable  ends,  the  party  shall 
be  acquitted ;  and  the  jury  shall  have  the  right  to  determine 
the  law  and  the  fact.  Indictments  found,  or  information 
laid,  for  publications  in  newspapers,  shall  be  tried  in  the 
county  where  such  newspapers  have  their  publication  office, 


3  DECLARATION  OF  RIGHTS.  Art.  I,  §§  10-14 

or  in  the  county  where  the  party  alleged  to  be  libeled  re- 
sided at  the  time  of  the  alleged  publication,  unless  the  place 
of  trial  shall  be  changed  for  good  cause. 

Sec.  10.  The  people  shall  have  the  right  to  freely  as- 
semble together  to  consult  for  the  common  good,  to  instruct 
their  representatives,  and  to  petition  the  legislature  for  re- 
dress of  grievances. 

Sec.  11.  All  laws  of  a  general  nature  shall  have  a  uniform 
operation. 

Sec.  12.  The  military  shall  be  subordinate  to  the  civil 
power.  No  standing  army  shall  be  kept  up  by  this  state  in 
time  of  peace,  and  no  soldier  shall,  in  time  of  peace,  be  quar- 
tered in  any  house  without  the  consent  of  the  owner ;  nor  in 
time  of  war,  except  in  the  manner  prescribed  by  law. 

Sec.  13.  In  criminal  prosecutions,  in  any  court  whatever, 
the  party  accused  shall  have  the  right  to  a  speedy  and  pub- 
lic trial ;  to  have  the  process  of  the  court  to  compel  the  at- 
tendance of  witnesses  in  his  behalf,  and  to  appear  and  de- 
fend, in  person  and  with  counsel.  No  person  shall  be  twice 
put  in  jeopardy  for  the  same  offense ;  nor  be  compelled,  in 
any  criminal  case,  to  be  a  witness  against  himself;  nor  be 
deprived  of  life,  liberty  or  property  without  due  process  of 
law.  The  legislature  shall  have  power  to  provide  for  the 
taking,  in  the  presence  of  the  party  accused  and  his  counsel, 
of  depositions  of  witnesses,  in  criminal  cases  other  than 
cases  of  homicide,  when  there  is  reason  to  believe  that  the 
witness,  from  inability  or  other  cause,  will  not  attend  at 
the  trial. 

Sec.  14.  Private  property  shall  not  be  taken  or  damaged 
for  public  use  without  just  compensation  having  first  been 
made  to,  or  paid  into  court  for,  the  owner,  and  no  right  of 
way  shall  be  appropriated  to  the  use  of  any  corporation 
other  than  municipal  until  full  compensation  therefor  be 
first  made  in  money  or  ascertained  and  paid  into  court  for 
the  owner,  irrespective  of  any  benefits  from  any  improve- 
ment proposed  by  such  corporation,  which  compensation 
shall  be  ascertained  by  a  jury,  unless  a  jury  be  waived,  as 
in  other  civil  cases  in  a  court  of  record,  as  shall  be  pre- 


Art.  I,  §§  15-20        CONSTITUTION  OF  1879.  4 

scribed  by  law.  The  taking  of  private  property  for  a  rail- 
road run  by  steam  or  electric  power  for  logging  or  lumber- 
ing purposes  shall  be  deemed  a  taking  for  a  public  use,  and 
any  person,  firm,  company  or  corporation  taking  private 
property  under  the  law  of  eminent  domain  for  such  pur- 
poses shall  thereupon  and  thereby  become  a  common  carrier. 
[Amendment  adopted  October  10,  1911.] 

Sec.  15.  No  person  shall  be  imprisoned  for  debt  in  any 
civil  action,  on  mesne  or  final  process,  unless  in  cases  of 
fraud,  nor  in  civil  actions  for  torts,  except  in  cases  of  will- 
ful injury  to  person  or  property;  and  no  person  shall  be 
imprisoned  for  a  militia  fine  in  time  of  peace. 

Sec.  16.  No  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligations  of  contracts,  shall  ever  be  passed. 

Sec.  17.  Foreigners,  of  the  white  race,  or  of  African  de- 
scent, eligible  to  become  citizens  of  the  United  States  under 
the  naturalization  laws  thereof,  while  bona  fide  residents  of 
this  state,  shall  have  the  same  rights  in  respect  to  the  ac- 
quisition, possession,  enjoyment,  transmission,  and  inheri- 
tance of  all  property,  other  than  real  estate,  as  native-born 
citizens ;  provided,  that  such  aliens  owning  real  estate  at  the 
time  of  the  adoption  of  this  amendment  may  remain  such 
owners ;  and  provided,  further,  that  the  legislature  may,  by 
statute,  provide  for  the  disposition  of  real  estate  which  shall 
hereafter  be  acquired  by  such  aliens  by  descent  or  devise. 
[Amendment  adopted  November  6,  1894.] 

Sec.  18.  Neither  slavery  nor  involuntary  servitude,  un- 
less for  the  punishment  of  crime,  shall  ever  be  tolerated  in 
this  state. 

Sec.  19.  The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers  and  effects,  against  unreasonable 
seizures  and  searches,  shall  not  be  violated ;  and  no  warrant 
shall  issue  but  on  probable  cause,  supported  by  oath  or  af- 
firmation, particularly  describing  the  place  to  be  searched 
and  the  person  and  things  to  be  seized. 

Sec.  20.  Treason  against  the  state  shall  consist  only  in 
levying  war  against  it,  adhering  to  its  enemies,  or  giving 
them  aid  and  comfort.     No  person  shall  be  convicted  of 


5  DECLARATION    OF    RIGHTS.         Art.  I,  §  §  21-26a 

treason  unless  on  the  evidence  of  two  witnesses  to  the  same 
overt  act,  or  confession  in  open  court. 

Sec.  21.  No  special  privileges  or  immunities  shall  ever 
be  granted  Avhich  may  not  be  altered,  revoked,  ori  repealed 
by  the  legislature,  nor  shall  any  citizen,  or  class  of  citizens, 
be  granted  privileges  or  immunities  which,  upon  the  same 
terms,  shall  not  be  granted  to  all  citizens. 

Sec.  22.  The  provisions  of  this  Constitution  are  manda- 
tory and  prohibitory,  unless  by  express  words  they  are 
declared  to  be  otherwise. 

Sec.  23.  This  enumeration  of  rights  shall  not  be  con- 
strued to  impair  or  deny  others  retained  by  the  people. 

See.  24.  No  property  qualification  shall  ever  be  required 
for  any  person  to  vote  or  hold  office. 

Sec.  25.  The  people  shall  have  the  right  to  fish  upon  and 
from  public  lands  of  the  state  and  in  the  waters  thereof, 
excepting  upon  lands  set  aside  for  fish  hatcheries,  and  no 
land  owned  by  the  state  shall  ever  be  sold  or  transferred 
without  reserving  in  the  people  the  absolute  right  to  fish 
thereupon,  and  no  law  shall  ever  be  passed  making  it  a 
crime  for  the  people  to  enter  upon  the  public  lands  within 
this  state  for  the  purpose  of  fishing  in  any  water  containing 
fish  that  have  been  planted  therein  by  the  state;  provided, 
that  the  legislature  may  by  statute,  provide  for  the  season 
when  and  the  conditions  under  which  the  different  species 
of  fish  may  be  taken.  [New  section  adopted  November  8, 
1910.] 

Sec.  26a.  Should  an  amendment  to  the  Constitution  of 
the  state  of  California  by  adding  to  article  I  two  new  sec- 
tions to  be  numbered  respectively  section  26  and  section 
27,  as  proposed  by  initiative  petition  filed  with  and  certified 
to  the  secretary  of  state,  and  relating  to  intoxicating  liquors, 
be  enacted  at  the  general  election  held  on  Nov.  3,  1914,  then 
the  force  and  effect  of  said  section  26  shall  be  suspended 
until  Feb.  15,  1915,  at  which  time  it  shall  have  full  force  and 
effect  except  that,  as  to  the  manufacture  and  transportation 
of  intoxicating  liquors  for  delivery  at  points  outside  of  the 


Art.  II,  §§1,2  CONSTITUTION  OF  1879.  6 

state  of  California  only,  the  force  and  effect  thereof  shall 
be  suspended  until  Jan.  1,  1916,  at  which  time  such  manu- 
facture and  transportation  also  shall  wholly  cease  and  on 
and  after  said  date  said  section  26  shall  in  all  respects  have 
full  force  and  effect.  (Amendment  adopted  November  3, 
1914.) 

Note. — The  proposed  amendment  referred  to  in  this  amendment 
was  not  adopted,  so  that  this  section  never  became  operative,  although 
adopted, 

ARTICLE  II. 

EIGHT  OF  SUFFRAGE. 

Section  1.  Every  native  citizen  of  the  United  States, 
every  person  who  shall  have  acquired  the  rights  of  citizen- 
ship under  or  by  virtue  of  the  treaty  of  Queretaro,  and 
every  naturalized  citizen  thereof,  who  shall  have  become 
such  ninety  days  prior  to  any  election,  of  the  age  of  twenty- 
one  years,  who  shall  have  been  resident  of  the  state  one  year 
next  preceding  the  election,  and  of  the  county  in  which  he 
or  she  claims  his  or  her  vote  ninety  days,  and  in  the  election 
precinct  thirty  days,  shall  be  entitled  to  vote  at  all  elections 
which  are  now  or  may  hereafter  be  authorized  by  law ;  pro- 
vided, no  native  of  China,  no  idiot,  no  insane  person,  no  per- 
son convicted  of  any  infamous  crime,  no  person  hereafter 
convicted  of  the  embezzlement  or  misappropriation  of  pub- 
lic money,  and  no  person  who  shall  not  be  able  to  read  the 
Constitution  in  the  English  language  and  Avrite  his  or  her 
name,  shall  ever  exercise  the  privileges  of  an  elector  in  this 
state ;  provided,  that  the  provisions  of  this  amendment  rela- 
tive to  an  educational  qualification  shall  not  apply  to  any 
person  prevented  by  a  physical  disability  from  complying 
with  its  requisitions,  nor  to  any  person  who  now  has  the 
right  to  vote,  nor  to  any  person  who  shall  be  sixty  years  of 
age  and  upward  at  the  time  this  amendment  shall  take  ef- 
fect.    [Amendment  adopted  October  10,  1911.] 

Sec.  2.  Electors  shall  in  all  cases,  except  treason,  felony, 
or  breach  of  the  peace,  be  privileged  from  arrest  on  the 


7  RIGHT   OF    SUFFRAGE.  Art.  II,  §§  21/2-5 

days  of  election,  during  their  attendance  at  such  election, 
going  to  and  returning  therefrom. 

See.  21/2.  The  legislature  shall  have  the  power  to  enact 
laws  relative  to  the  election  of  delegates  to  conventions  of 
political  parties;  and  the  legislature  shall  enact  laws  pro- 
viding for  the  direct  nomination  of  candidates  for  public 
office,  by  electors,  political  parties,  or  organizations  of  elec- 
tors without  conventions,  at  elections  to  be  known  and  des- 
ignated as  primary  elections ;  also  to  determine  the  tests 
and  conditions  upon  which  electors,  political  parties,  or  or- 
ganizations of  electors  may  participate  in  any  such  primary 
election.  It  shall  also  be  lawful  for  the  legislature  to  pre- 
scribe that  any  such  primary  election  shall  be  mandatory 
and  obligatory.  The  legislature  shall  also  have  the  power 
to  establish  the  rates  of  compensation  for  primary  election 
officers  serving  at  such  primary  elections  in  any  city,  or  city 
and  county,  or  county,  or  other  subdivision  of  a  designated 
population,  without  making  such  compensation  uniform, 
and  for  such  purpose  such  law  may  declare  the  population 
of  any  city,  city  and  county,  county  or  political  subdivision ; 
provided,  however,  that  until  the  legislature  shall  enact  a 
direct  primary  election  law  under  the  provisions  of  this  sec- 
tion, the  present  primary  election  laAv  shall  remain  in  force 
and  effect.      [Amendment  adopted  November  3,  1908.] 

Sec.  3.  No  elector  shall  be  obliged  to  perform  militia 
duty  on  the  day  of  election,  except  in  time  of  war  or  public 
danger. 

Sec.  4.  For  the  purpose  of  voting,  no  person  shall  be 
deemed  to  have  gained  or  lost  a  residence  by  reason  of  his 
presence  or  absence  while  employed  in  the  service  of  the 
United  States;  nor  while  engaged  in  the  navigation  of  the 
waters  of  this  state,  or  of  the  United  States,  or  of  the  high 
seas;  nor  while  a  student  at  any  seminary  of  learning;  nor 
while  kept  in  any  almshouse  or  other  asylum,  at  public  ex- 
pense; nor  Avhile  confined  in  any  public  prison. 

Sec.  5.  All  elections  by  the  people  shall  be  by  ballot  or 
by  such  other  method  as  may  be  prescribed  by  law;  pro- 
vided, that  secrecy  in  voting  be  preserved.  [Amendment 
adopted  November  3,  1896.] 


Art.  IV,  §  1  CONSTITUTION  OF  1879.  8 

Sec.  6.  The  inhibitions  of  this  Constitution  to  the  con- 
trary notwithstanding,  the  legislature  shall  have  power  to 
provide  that  in  different  parts  of  the  state  different  methods 
may  be  employed  for  receiving  and  registering  the  will  of 
the  people  as  expressed  at  elections,  and  may  provide  that 
mechanical  devices  may  be  used  within  designated  subdivi- 
sions of  the  state  at  the  option  of  the  local  authority  indi- 
cated by  the  legislature  for  that  purpose.  [New  section 
adopted  November  4,  1902.] 

ARTICLE  III. 
DISTRIBUTION  OF  POWERS. 

Section  1.  The  powers  of  the  government  of  the  state  of 
California  shall  be  divided  into  three  separate  departments 
— the  legislative,  executive,  and  judicial;  and  no  person 
charged  with  the  exercise  of  powers  properly  belonging  to 
one  of  these  departments  shall  exercise  any  functions  ap- 
pertaining to  either  of  the  others,  except  as  in  this  Constitu- 
tion expressly  directed  or  permitted. 

ARTICLE   IV. 
LEGISLATIVE  DEPARTMENT. 

Section  1.  The  legislative  power  of  the  state  shall  be 
vested  in  a  Senate  and  Assembly  which  shall  be  designated 
"The  Legislature  of  the  State  of  California,"  but  the  people 
reserve  to  themselves  the  power  to  propose  laws  and  amend- 
ments to  the  Constitution,  and  to  adopt  or  reject  the  same, 
at  the  polls  independent  of  the  legislature,  and  also  reserve 
the  power,  at  their  own  option,  to  so  adopt  or  reject  any 
act,  or  section  or  part  of  any  act,  passed  by  the  legislature. 
The  enacting  clause  of  every  law  shall  be  "The  people  of 
the  State  of  California  do  enact  as  follows" : 

The  firbt  power  reserved  to  the  people  shall  be  known  as 
the  initiative.  Upon  the  presentation  to  the  secretary  of 
state  of  a  petition  certified  as  herein  provided  to  have  been 
signed  by  qualified  electors,  equal  in  number  to  eight  per 
cent  of  all  the  votes  cast  for  all  candidates  for  governor  at 
the  last  preceding  general  election,  at  Avhich  a  governor  was 


9  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  1 

elected,  proposing  a  law  or  amendment  to  the  Constitution, 
set  forth  in  full  in  said  petition,  the  secretary  of  state  shall 
submit  the  said  proposed  law  or  amendment  to  the  Constitu- 
tion to  the  electors  at  the  next  succeeding  general  election 
occurring  subsequent  to  ninety  days  after  the  presentation 
aforesaid  of  said  petition,  or  at  any  special  election  called 
by  the  governor  in  his  discretion  prior  to  such  general  elec- 
tion. All  such  initiative  petitions  shall  have  printed  across 
the  top  thereof  in  twelve  point  black-face  type  the  follow- 
ing: "Initiative  measure  to  be  submitted  directly  to  the 
electors." 

Upon  the  presentation  to  the  secretary  of  state,  at  any 
time  not  less  than  ten  days  before  the  commencement  of  any 
regular  session  of  the  legislature,  of  a  petition  certified  as 
herein  provided  to  have  been  signed  by  qualified  electors  of 
the  state  equal  in  number  to  five  per  cent  of  all  the  votes 
cast  for  all  candidates  for  governor  at  the  last  preceding 
general  election,  at  which  a  governor  was  elected,  propos- 
ing a  law  set  forth  in  full  in  said  petition,  the  secretary  of 
state  shall  transmit  the  same  to  the  legislature  as  soon  as  it 
convenes  and  organizes.  The  law  proposed  by  such  peti- 
tion shall  be  either  enacted  or  rejected  Avithout  change  or 
amendment  by  the  legislature,  within  forty  days  from  the 
time  it  is  received  by  the  legislature.  If  any  law  proposed 
by  such  petition  shall  be  enacted  by  the  legislature  it  shall 
be  subject  to  referendum,  as  hereinafter  provided.  If  any 
law  so  petitioned  for  be  rejected,  or  if  no  action  is  taken 
upon  it  by  the  legislature,  within  said  forty  days,  the  secre- 
tary of  state  shall  submit  it  to  the  people  for  approval  or  re- 
jection at  the  next  ensuing  general  election.  The  legislature 
may  reject  any  measure  so  proposed  by  initiative  petition 
and  propose  a  different  one  on  the  same  subject  by  a  yea 
and  nay  vote  upon  separate  roll-call,  and  in  such  event  both 
measures  shall  be  submitted  by  the  secretary  of  state  to  the 
electors  for  approval  or  rejection  at  the  next  ensuing  gen- 
eral election  or  at  a  prior  special  election  called  by  the  gov- 
ernor, in  his  discretion,  for  such  purpose.  All  said  initia- 
tive petitions  last  above  described  shall  have  printed  in 


Art.  IV,  §  1  CONSTITUTION   OF   1879.  10 

twelve  point  black-face  type  the  following :  "Initiative 
measure  to  be  presented  to  the  legislature." 

The  second  power  reserved  to  the  people  shall  be  known 
as  the  referendum.  No  act  passed  by  the  legislature  shall 
go  into  effect  until  ninety  days  after  the  final  adjournment 
of  the  session  of  the  legislature  which  passed  such  act,  ex- 
cept acts  calling  elections,  acts  providing  for  tax  levies  or 
appropriations  for  the  usual  current  expenses  of  the  state, 
and  urgency  measures  necessary  for  the  immediate  preser- 
vation of  the  public  peace,  health  or  safety,  passed  by  a  two- 
thirds  vote  of  all  the  members  elected  to  each  house.  When- 
ever it  is  deemed  necessary  for  the  immediate  preservation 
of  the  public  peace,  health  or  safety  that  a  law  shall  go  into 
immediate  effect,  a  statement  of  the  facts  constituting  such 
necessity  shall  be  set  forth  in  one  section  of  the  act,  which 
section  shall  be  passed  only  upon  a  yea  and  nay  vote,  upon 
a  separate  roll-call  thereon;  provided,  however,  that  no 
measure  creating  or  abolishing  any  office  or  changing  the 
salary,  term  or  duties  of  any  officer,  or  granting  any  fran- 
chise or  special  privilege,  or  creating  any  vested  right  or 
interest,  shall  be  construed  to  be  an  urgency  measure.  Any 
law  so  passed  by  the  legislature  and  declared  to  be  an  ur- 
gency measure  shall  go  into  immediate  effect. 

Upon  the  presentation  to  the  secretary  of  state  within 
ninety  days  after  the  final  adjournment  of  the  legislature  of 
a  petition  certified  as  herein  provided,  to  have  been  signed 
by  qualified  electors  equal  in  number  to  five  per  cent  of  all 
the  votes  cast  for  all  candidates  for  governor  at  the  last  pre- 
ceding general  election  at  which  a  governor  was  elected, 
asking  that  any  act  or  section  or  part  of  any  act  of  the 
legislature  be  submitted  to  the  electors  for  their  approval  or 
rejection,  the  secretary  of  state  shall  submit  to  the  electors 
for  their  approval  or  rejection,  such  act,  or  section  or  part 
of  such  act,  at  the  next  succeeding  general  election,  occur- 
ring at  any  time  subsequent  to  thirty  days  after  the  filing 
of  said  petition  or  at  any  special  election  which  may  be 
called  by  the  governor,  in  his  discretion,  prior  to  such  regu- 
lar election,  and  no  such  act  or  section  or  part  of  such  shall 
go  into  effect  until  and  unless  approved  by  a  majority  of 


11  LEGISLATIVE   DEPARTMENT.  Alt.  IV,  §  1 

the  qualified  electors  voting  thereon;  but  if  a  referendvini 
petition  is  filed  against  any  section  or  part  of  any  act  the 
remainder  of  such  act  shall  not  be  delayed  from  going  into 
effect. 

Any  act,  law  or  amendment  to  the  Constitution  submitted 
to  the  people  by  either  initiative  or  referendum  petition 
and  approved  by  a  majority  of  the  votes  cast  thereon,  at 
any  election,  shall  take  effect  five  days  after  the  date  of  the 
official  declaration  of  the  vote  by  the  secretary  of  state. 
No  act,  law  or  amendment  to  the  Constitution,  initiated  or 
adopted  by  the  people,  shall  be  subject  to  the  veto  power  of 
the  governor,  and  no  act,  law  or  amendment  to  the  Constitu- 
tion, adopted  by  the  people  at  the  polls  under  the  initiative 
provisions  of  this  section,  shall  be  amended  or  repealed  ex- 
cept by  a  vote  of  the  electors,  unless  otherAvise  provided  in 
said  initiative  measure ;  but  acts  and  laws  adopted  by  the 
people  under  the  referendum  provisions  of  this  section  may 
be  amended  by  the  legislature  at  any  subsequent  session 
thereof.  If  any  provision  or  provisions  of  tAvo  or  more 
measures,  approved  by  the  electors  at  the  same  election, 
conflict,  the  provision  or  provisions  of  the  measure  receiv- 
ing the  highest  affirmative  vote  shall  prevail.  Until  other- 
Avise  provided  by  laAv,  all  measures  submitted  to  a  vote  of 
the  electors,  under  the  provisions  of  this  section,  shall  be 
printed,  and  together  Avith  arguments  for  and  against  each 
such  measure  by  the  proponents  and  opponents  thereof, 
shall  be  mailed  to  each  elector  in  the  same  manner  as  noAV 
proAdded  by  laAv  as  to  amendments  to  the  Constitution,  pro- 
posed by  the  legislature ;  and  the  persons  to  prepare  and 
present  such  arguments  shall,  until  otherwise  provided  by 
laAv,  be  selected  by  the  presiding  officer  of  the  Senate. 

If  for  any  reason  any  initiative  or  referendum  measure, 
proposed  by  petition  as  herein  provided,  be  not  submitted  at 
the  election  specified  in  this  section,  such  failure  shall  not 
prevent  its  submission  at  a  succeeding  general  election,  and 
no  law  or  amendment  to  the  Constitution,  proposed  by  the 
legislature,  shall  be  submitted  at  any  election  unless  at  the 
same  election  there  shall  be  submitted  all  measures  pro- 


Art.  1 V,  5  1  CONSTITUTION  OF  1879.  12 

posed  by  petition  of  the  electors,  if  any  be  so  proposed,  as 
herein  provided. 

Any  initiative  or  referendum  petition  may  be  presented 
in  sections,  but  each  section  shall  contain  a  full  and  correct 
copy  of  the  title  and  text  of  the  proposed  measure.  Each 
signer  shall  add  to  his  signature  his  place  of  residence,  giv- 
ing the  street  and  number  if  such  exist.  His  election  pre- 
cinct shall  also  appear  on  the  paper  after  his  name.  The 
number  of  signatures  attached  to  each  section  shall  be  at 
the  pleasure  of  the  person  soliciting  signatures  to  the  same. 
Any  qualified  elector  of  the  state  shall  be  competent  to  so- 
licit said  signatures  within  the  county  or  city  and  county  of 
which  he  is  an  elector.  Each  section  of  the  petition  shall 
bear  the  name  of  the  county  or  city  and  county  in  which  it  is 
circulated,  and  only  qualified  electors  of  such  county  or  city 
and  county  shall  be  competent  to  sign  such  section.  Each 
section  shall  have  attached  thereto  the  affidavit  of  the  person 
soliciting  signatures  to  the  same,  stating  his  own  qualifica- 
tions and  that  all  the  signatures  to  the  attached  section 
were  made  in  his  presence  and  that  to  the  best  of  his  knowl- 
edge and  belief  each  signature  to  the  section  is  the  genuine 
signature  of  the  person  whose  name  it  purports  to  be,  and 
no  other  affidavit  thereto  shall  be  required.  The  affidavit 
of  any  person  soliciting  signatures  hereunder  shall  be  veri- 
fied free  of  charge  by  any  officer  authorized  to  administer 
oaths.  Such  petitions  so  verified  shall  be  prima  facie  evi- 
dence that  the  signatures  thereon  are  genuine  and  that  the 
persons  signing  the  same  are  qualified  electors.  Unless  and 
until  it  be  otherwise  proven  upon  official  investigation,  it 
shall  be  presumed  that  the  petition  presented  contains  the 
signatures  of  the  requisite  number  of  qualified  electors. 

Each  section  of  the  petition  shall  be  filed  with  the  clerk 
or  registrar  of  voters  of  the  county  or  city  and  county  in 
which  it  was  circulated,  but  all  said  sections  circulated  in 
any  county  or  city  and  county  shall  be  filed  at  the  same 
time.  Within  twenty  days  after  the  filing  of  such  petition 
in  his  office  the  said  clerk,  or  registrar  of  voters,  shall  deter- 
mine from  the  records  of  registration  what  number  of  quali- 
fied electors  have  signed  the  same,  and  if  necessary  the 


13  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  1 

board  of  supervisors  shall  allow  said  clerk  or  registrar  ad- 
ditional assistants  for  the  purpose  of  examining  such  peti- 
tion and  provide  for  their  compensation.  The  said  clerk 
or  registrar,  upon  the  completion  of  such  examination,  shall 
forthw^ith  attach  to  said  petition,  except  the  signatures 
thereto  appended,  his  certificate,  properly  dated,  showing 
the  result  of  said  examination  and  shall  forthwith  transmit 
said  petition,  together  with  his  said  certificate,  to  the  secre- 
tary of  state  and  also  file  a  copy  of  said  certificate  in  his 
office.  "Within  forty  days  from  the  transmission  of  the  said 
petition  and  certificate  by  the  clerk  or  registrar  to  the  secre- 
tary of  state,  a  supplemental  petition  identical  with  the 
original  as  to  the  body  of  the  petition  but  containing  supple- 
mental names,  may  be  filed  with  the  clerk  or  registrar  of 
voters,  as  aforesaid.  The  clerk  or  registrar  of  voters  shall 
within  ten  days  after  the  filing  of  such  supplemental  peti- 
tion make  like  examination  thereof  as  of  the  original  peti- 
tion, and  upon  the  completion  of  such  examination  shall 
forthwith  attach  to  said  petition  his  certificate,  properly 
dated,  showing  the  result  of  said  examination,  and  shall 
forthwith  transmit  a  copy  of  said  supplemental  petition, 
except  the  signatures  thereto  appended,  together  with  his 
certificate,  to  the  secretary  of  state. 

When  the  secretary  of  state  shall  have  received  from  one 
or  more  county  clerks  or  registrars  of  voters  a  petition  cer- 
tified as  herein  provided  to  have  been  signed  by  the  requi- 
site number  of  qualified  electors,  he  shall  forthwith  transmit 
to  the  county  clerk  or  registrar  of  voters  of  every  county  or 
city  and  county  in  the  state  his  certificate  showing  such 
fact.  A  petition  shall  be  deemed  to  be  filed  with  the  secre- 
tary of  state  upon  the  date  of  the  receipt  by  him  of  a  certifi- 
cate or  certificates  showing  said  petition  to  be  signed  by  the 
requisite  number  of  electors  of  the  state.  Any  county  clerk 
or  registrar  of  voters  shall,  upon  receipt  of  such  copy,  file 
the  same  for  record  in  his  office.  The  duties  herein  imposed 
upon  the  clerk  or  registrar  of  voters  shall  be  performed  by 
such  registrar  of  voters  in  all  cases  where  the  office  of  regis- 
trar of  voters  exists. 


Art.  IV,  §§2, 3         CONSTITUTION  OF  1879.  14 

The  initiative  and  referendum  powers  of  the  people  are 
hereby  further  reserved  to  the  electors  of  each  county,  city 
and  county,  city  and  town  of  the  state,  to  be  exercised  un- 
der such  procedure  as  may  be  provided  by  law.  Until 
otherwise  provided  by  law,  the  legislative  body  of  any  such 
county,  city  and  county,  city  or  town  may  provide  for  the 
manner  of  exercising  the  initiative  and  referendum  powers 
herein  reserved  to  such  counties,  cities  and  counties,  cities 
and  towns,  but,  shall  not  require  more  than  fifteen  per  cent 
of  the  electors  thereof  to  propose  any  initiative  measure  nor 
more  than  ten  per  cent  of  the  electors  thereof  to  order  the 
referendum.  Nothing  contained  in  this  section  shall  be 
construed  as  affecting  or  limiting  the  present  or  future 
powers  of  cities  or  cities  and  counties  having  charters 
adopted  under  the  provisions  of  section  eight  of  article  XI 
of  this  Constitution.  In  the  submission  to  the  electors  of 
any  measure  under  this  section,  all  officers  shall  be  guided 
by  the  general  laws  of  this  state,  except  as  is  herein  other- 
wise provided.  This  section  is  self-executing,  but  legisla- 
tion may  He  enacted  to  facilitate  its  operation,  but  in  no 
way  limiting  or  restricting  either  the  provisions  of  this  sec- 
tion or  the  poAvers  herein  reserved.  [Amendment  adopted 
October  10,  1911.] 

Sec.  2.  The  sessions  of  the  legislature  shall  be  biennial, 
unless  the  governor  shall,  in  the  interim,  convene  the  legis- 
lature, by  proclamation,  in  extraordinary  session.  All  ses- 
sions, other  than  extraordinary,  shall  commence  at  12  o'clock 
M.,  on  the  first  Monday  after  the  first  day  of  January  next 
succeeding  the  election  of  its  members,  and  shall  continue 
in  session  for  a  period  not  exceeding  thirty  days  thereafter ; 
whereupon  a  recess  of  both  houses  must  be  taken  for  not 
less  than  thirty  days.  On  the  reassembling  of  the  legisla- 
ture, no  bill  shall  be  introduced  in  either  house  without  the 
consent  of  three-fourths  of  the  members  thereof,  nor  shall 
more  than  two  bills  be  introduced  by  any  one  member  after 
such  reassembling.    [Amendment  adopted  October  10, 1911.] 

Sec.  3.  Members  of  the  assembly  shall  be  elected  in  the 
year  eighteen  hundred  and  seventy-nine,  at  the  time  and  in 
the  manner  now  provided  by  law.     The  second  election  of 


15  LEGISLATIVE   DEPARTMENT.         Art.  IV,  §§4-6 

members  of  the  assembly,  after  the  adoption  of  this  Con- 
stitution, shall  be  on  the  first  Tuesday  after  the  first  Mon- 
day in  November,  eighteen  hundred  and  eighty.  There- 
after members  of  the  assembly  shall  be  chosen  biennially, 
and  their  term  of  office  shall  be  two  years ;  and  each  election 
shall  be  on  the  first  Tuesday  after  the  first  Monday  in  No- 
vember, unless  otherwise  ordered  by  the  legislature. 

Sec.  4.  Senators  shall  be  chosen  for  the  term  of  four 
years,  at  the  same  time  and  place  as  members  of  the  as- 
sembly, and  no  person  shall  be  a  member  of  the  senate  or 
assembly  who  has  not  been  a  citizen  and  inhabitant  of  the 
state  three  years,  and  of  the  district  for  which  he  shall  be 
chosen  one  year,  next  before  his  election. 

Sec.  5.  The  senate  shall  consist  of  forty  members,  and 
the  assembly  of  eighty  members,  to  be  elected  by  districts, 
numbered  as  hereinafter  provided.  The  seats  of  the  tAventy 
senators  elected  in  the  year  eighteen  hundred  and  eighty-two 
from  the  odd-numbered  districts  shall  be  vacated  at  the  ex- 
piration of  the  second  year,  so  that  one-half  of  the  senators 
shall  be  elected  every  two  years ;  provided,  that  all  the  sena- 
tors elected  at  the  first  election  under  this  Constitution  shall 
hold  office  for  the  term  of  three  years. 

Sec.  6.  For  the  purpose  of  choosing  members  of  the 
legislature,  the  state  shall  be  divided  into  forty  senatorial 
and  eighty  assembly  districts,  as  nearly  equal  in  population 
as  may  be,  and  composed  of  contiguous  territory,  to  be 
called  senatorial  and  assembly  districts.  Each  senatorial 
district  shall  choose  one  senator,  and  each  assembly  district 
shall  choose  one  member  of  assembly.  The  senatorial  dis- 
tricts shall  be  numbered  from  one  to  forty,  inclusive,  in 
numerical  order,  and  the  assembly  districts  shall  be  num- 
bered from  one  to  eighty  in  the  same  order,  commencing  at 
the  northern  boundary  of  the  state  and  ending  at  the  south- 
ern boundary  thereof.  In  the  formation  of  such  districts  no 
county,  or  city  and  county,  shall  be  divided,  unless  it  con- 
tains sufficient  population  within  itself  to  form  two  or  more 
districts,  nor  shall  a  part  of  any  county,  or  of  any  city  and 
county,  be  united  with  any  other  county  or  city  and  county, 


Art.  IV,  §§  7-12       .  CONSTITUTION  OF  1879.  16 

in  forming  any  district.  The  census  taken  under  the  direc- 
tion of  the  Congress  of  the  United  States  in  the  year  one 
thousand  eight  hundred  and  eighty,  and  every  ten  years 
thereafter,  shall  be  the  basis  of  fixing  and  adjusting  the 
legislative  districts ;  and  the  legislature  shall,  at  its  first 
session  after  each  census,  adjust  such  districts  and  reappor- 
tion the  representation  so  as  to  preserve  them  as  near  equal 
in  population  as  may  be.  But  in  making  such  adjustment 
no  persons  who  are  not  eligible  to  become  citizens  of  the 
United  States,  under  the  naturalization  laws,  shall  be 
counted  as  forming  a  part  of  the  population  of  any  district. 
Until  such  districting  as  herein  provided  for  shall  be  made, 
senators  and  assemblymen  shall  be  elected  by  the  districts 
according  to  the  apportionment  now  provided  for  by  law. 

Sec.  7.  Each  house  shall  choose  its  officers,  and  judge  of 
the  qualifications,  elections,  and  returns  of  its  members. 

Sec.  8.  A  majority  of  each  house  shall  constitute  a 
quorum  to  do  business,  but  a  smaller  number  may  adjourn 
from  day  to  day,  and  may  compel  the  attendance  of  absent 
members  in  such  manner  and  under  such  penalties  as  each 
house  may  provide. 

Sec.  9.  Each  house  shall  determine  the  rule  of  its  pro- 
ceeding, and  may,  with  the  concurrence  of  two-thirds  of  all 
the  members  elected,  expel  a  member. 

Sec.  10.  Each  house  shall  keep  a  journal  of  its  proceed- 
ings, and  publish  the  same ;  and  the  yeas  and  nays  of  the 
members  of  either  house,  on  any  question,  shall,  at  the  de- 
sire of  any  three  members  present,  be  entered  on  the  jour- 
nal. 

Sec.  11.  Members  of  the  legislature  shall,  in  all  cases, 
except  treason,  felony,  and  breach  of  the  peace,  be  privi- 
leged from  arrest,  and  shall  not  be  subject  to  any  civil 
process  during  the  session  of  the  legislature,  nor  for  fifteen 
days  next  before  the  commencement  and  after  the  termina- 
tion of  each  session. 

Sec.  12.  When  vacancies  occur  in  either  house,  the  gov- 
ernor, or  the  person  exercising  the  functions  of  the  gover- 
nor, shall  issue  writs  of  election  to  fill  such  vacancies. 


17  LEGISLATIVE  DEPARTMENT.      Alt.  IV,  §§  13-16 

Sec.  13.  The  doors  of  each  house  shall  be  open,  except  on 
such  occasions  as,  in  the  opinion  of  the  house,  may  require 
secrecy. 

Sec.  14.  Neither  house  shall,  without  the  consent  of  the 
other,  adjourn  for  more  than  three  days,  nor  to  any  place 
other  than  that  in  which  they  may  be  sitting.  Nor  shall 
the  members  of  either  house  draw  pay  for  any  recess  or  ad- 
journment for  a  longer  time  than  three  days. 

Sec.  15.  No  law  shall  be  passed  except  by  bill.  Nor 
shall  any  bill  be  put  upon  its  final  passage  until  the  same, 
Avith  the  amendments  thereto,  shall  have  been  printed  for 
the  use  of  the  members ;  nor  shall  any  bill  become  a  law 
unless  the  same  be  read  on  three  several  days  in  each  house, 
unless,  in  case  of  urgency,  two-thirds  of  the  house  where 
such  bill  may  be  pending,  shall,  by  a  vote  of  yeas  and  nays, 
dispense  with  this  provision.  Any  bill  may  originate  in 
either  house,  but  may  be  amended  or  rejected  by  the  other ; 
and  on  the  final  passage  of  all  bills  they  shall  be  read  at 
length,  and  the  vote  shall  be  by  yeas  and  nays  upon  each 
bill  separately,  and  shall  be  entered  on  the  journal,  and  no 
bill  shall  become  a  law  without  the  concurrence  of  a  ma- 
jority of  the  members  elected  to  each  house. 

Sec.  16.  Every  bill  which  may  have  passed  the  legisla- 
ture shall,  before  it  becomes  a  law,  be  presented  to  the  gov- 
ernor. If  he  approve  it,  he  shall  sign  it ;  but  if  not,  he  shall 
return  it,  with  his  objections,  to  the  house  in  which  it  origi- 
nated, which  shall  enter  such  objections  upon  the  journal 
and  proceed  to  reconsider  it.  If  after  such  reconsideration, 
it  again  pass  both  houses,  by  yeas  and  nays,  two-thirds  of 
the  members  elected  to  each  house  voting  therefor,  it  shall 
become  a  law,  notwithstanding  the  governor's  objections. 
If  any  bill  shall  not  be  returned  within  ten  days  after  it 
shall  have  been  presented  to  him  (Sundays  excepted),  the 
same  shall  become  a  law  in  like  manner  as  if  he  had  signed 
^it,  unless  the  legislature,  by  adjournment,  prevents  such  re- 
turn, in  which  case  it  shall  not  become  a  law,  unless  the 
governor,  within  thirty  days  after  such  adjournment  (Sun- 
days excepted),  shall  sign  and  deposit  the  same  in  the  office 

Constitution — 2 


Art.  IV,  §§  17-19       CONSTITUTION  OF  1879.  18 

of  the  secretary  of  state,  in  which  case  it  shall  become  a  law 
in  like  manner  as  if  it  had  been  signed  by  him  before  ad- 
journment. If  any  bill  presented  to  the  governor  contains 
several  items  of  appropriation  of  money,  he  may  object  to 
one  or  more  items,  while  approving  other  portions  of  the 
bill.  In  such  case  he  shall  append  to  the  bill  at  the  time  of 
signing  it  a  statement  of  the  items  to  which  he  objects,  and 
the  reasons  therefor,  and  the  appropriation  so  objected  to 
shall  not  take  effect  unless  passed  over  the  governor's  veto, 
as  hereinbefore  provided.  If  the  legislature  be  in  session, 
the  governor  shall  transmit  to  the  house  in  which  the  bill 
originated  a  copy  of  such  statement,  and  the  items  so  ob- 
jected to  shall  be  separately  reconsideerd  in  the  same  man- 
ner as  bills  which  have  been  disapproved  by  the  governor. 
[Amendment  adopted  November  3,  1908.] 

Sec.  17.  The  assembly  shall  have  the  sole  power  of  im- 
peachment, and  all  impeachments  shall  be  tried  by  the  sen- 
ate. "When  sitting  for  that  purpose,  the  senators  shall  be 
upon  oath  or  affirmation  and  no  person  shall  be  convicted 
without  the  concurrence  of  two-thirds  of  the  members 
elected. 

Sec.  18.  The  governor,  lieutenant-governor,  secretary  of 
state,  controller,  treasurer,  attorney  general,  surveyor-gen- 
eral, chief  justice  and  associate  justices  of  the  supreme 
court,  judges  of  the  district  courts  of  appeal,  and  judges  of 
the  superior  courts,  shall  be  liable  to  impeachment  for  any 
misdemeanor  in  office ;  but  judgment  in  such  cases  shall  ex- 
tend only  to  removal  from  office  and  disqualification  to  hold 
any  office  of  honor,  trust,  or  profit  under  the  state;  but  the 
party  convicted  or  acquitted  shall  nevertheless  be  liable  to 
indictment,  trial  and  punishment  according  to  law.  All 
other  civil  officers  shall  be  tried  for  misdemeanor  in  office  in 
such  manner  as  the  legislature  may  provide.  [Amendment 
adopted  October  10,  1911.] 

Sec.  19.     No  senator  or  member  of  assembly  shall,  during, 
the  term  for  which  he  shall  have  been  elected,  be  appointed 
to  any  civil  office  of  profit  under  this  state  which  shall  have 
been  created,  or  the  emoluments  of  which  have  been  in- 


19  LEGISLATIVE  DEPARTMENT.       Art.  IV,  §§  20-22 

creased,  during  such  term,  except  such  offices  as  may  be 
filled  by  election  by  the  people. 

See.  20.  No  person  holding  any  lucrative  office  under  the 
I"^nited  States,  or  any  other  power,  shall  be  eligible  to  any 
civil  office  of  profit  under  this  state ;  pro\dded,  that  officers 
in  the  militia  who  receive  no  annual  salary,  local  officers, 
or  postmasters  whose  compensation  does  not  exceed  five 
hundred  dollars  per  annum  shall  not  be  deemed  to  hold 
lucrative  offices. 

Sec.  21.  No  person  convicted  of  the  embezzlement  or  de- 
falcation of  the  public  funds  of  the  United  States,  or  of  any 
state,  or  of  any  county  or  municipality  therein,  shall  ever 
be  eligible  to  any  office  of  honor,  trust,  or  profit  under  this 
state,  and  the  legislature  shall  provide,  by  law,  for  the  pun- 
ishment of  embezzlement  or  defalcation  as  a  felony. 

Sec.  22.  No  money  shall  be  drawn  from  the  treasury  but 
in  consequence  of  appropriations  made  by  law,  and  upon 
warrants  duly  drawn  thereon  by  the  controller;  and  no 
money  shall  ever  be  appropriated  or  drawn  from  the  state 
treasury  for  the  purpose  or  benefit  of  any  corporation,  asso- 
ciation, asylum,  hospital,  or  any  other  institution  not  under 
the  exclusive  management  and  control  of  the  state  as  a 
state  institution,  nor  shall  any  grant  or  donation  of  prop- 
erty ever  be  made  thereto  by  the  state,  provided,  that  not- 
Avithstanding  anything  contained  in  this  or  any  other  sec- 
tion of  this  Constitution,  the  legislature  shall  have  the  power 
to  grant  aid  to  the  institutions  conducted  for  the  support 
and  maintenance  of  minor  orphans,  or  half-orphans,  or 
abandoned  children,  or  aged  persons  in  indigent  circum- 
stances— such  aid  to  be  granted  by  a  uniform  rule,  and  pro- 
portioned to  the  number  of  inmates  of  such  respective  in- 
stitutions ;  provided,  further,  that  the  state  shall  have  at 
any  time  the  right  to  inquire  into  the  management  of  such 
institution;  provided,  further,  that  whenever  any  county,  or 
city  and  county,  or  city,  or  town,  shall  provide  for  tlie  sup- 
port of  minor  orphans,  or  half-orphans,  or  abandoned  chil- 
dren, or  aged  persons  in  indigent  circumstances,  such 
county,  city  and  county,  city,  or  town  shall  be  entitled  to 


Art.  IV,  §  22  CONSTITUTION  OF  1879.  20 

receive  the  same  pro  rata  appropriations  as  may  be  granted 
to  such  institutions  under  church  or  other  control.  An  ac- 
curate statement  of  the  receipts  and  expenditures  of  public 
moneys  shall  be  attached  to  and  published  with  the  laws  at 
every  regular  session  of  the  legislature ;  provided,  however, 
that  for  the  purpose  of  raising  five  million  dollars  ($5,- 
000,000),  to  be  used  in  establishing,  maintaining,  and  sup- 
porting in  the  city  and  county  of  San  Francisco,  state  of 
California,  an  exposition  in  commemoration  of  the  comple- 
tion of  the  Panama  canal,  to  be  known  as  the  Panama-Pa- 
cific International  Exposition,  the  state  board  of  equaliza- 
tion shall,  for  the  fiscal  year  beginning  July  1,  1911,  and  for 
each  fiscal  year  thereafter,  to  and  including  the  fiscal  year 
beginning  July  1,  1914,  fix,  establish,  and  levy  such  an  ad 
valorem  rate  of  taxation,  as  when  levied  upon  all  the  tax- 
able property  in  the  state,  after  making  due  allowance  for 
delinquency,  shall  produce  for  each  of  such  fiscal  years  a 
sum  of  one  million  two  hundred  and  fifty  thousand  dollars 
($1,250,000).  The  said  taxes  shall  be  levied,  assessed,  and 
collected  upon  every  kind  and  character  of  property  in  the 
state  of  California  not  exempt  from  taxation  under  the  law, 
and  subject  to  taxation  on  the  first  day  of  July,  1910,  and 
in  the  same  manner,  and  by  the  same  method,  as  other  state 
taxes  were  levied,  assessed,  and  collected  under  the  law,  as 
the  same  existed  on  the  first  day  of  July,  1910.  The  state 
board  of  equalization  shall  each  year,  at  the  time  it  deter- 
mines the  amount  of  revenue  required  for  other  state  pur- 
poses, determine,  fix,  and  include  the  rate  of  tax  necessary 
to  raise  the  revenue  herein  provided  for. 

There  is  hereby  created  in  the  state  treasury  a  fund  to  be 
knoAvn  as  the  Panama-Pacific  International  Exposition  fund, 
and  all  moneys  collected  pursuant  to  this  provision,  after 
deducting  the  proportionate  share  of  the  expense  for  the 
collection  of  the  same,  shall  be  paid  into  the  state  treasury, 
and  credited  to  such  fund.  All  moneys  so  paid  into  such 
fund  are  hereby  appropriated,  without  reference  to  fiscal 
years,  for  the  use,  establishment,  maintenance,  and  support 
of  said  Panama-Pacific  International  Exposition.     No  tax, 


21  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  22 

license  fee,  or  charge  of  any  kind  or  character  shall  ever  be 
levied  or  assessed  or  charged  against  any  property  of  said 
Panama-Pacific  International  Exposition,  or  against  any 
property  used  as  exhibit  therein,  while  being  used  or  exhib- 
ited in  connection  therewith. 

There  is  hereby  created  a  commission  to  be  known  as  the 
Panama-Pacific  International  Exposition  Commission  of  the 
state  of  California,  which  shall  consist  of  the  governor  of 
said  state  and  four  other  members  to  be  appointed  by  the 
governor,  by  and  with  the  advice  and  consent  of  the  senate 
of  said  state.  The  governor  shall  have  the  power  to  fill  all 
vacancies  occurring  at  any  time  in  said  commission.  The 
members  of  said  commission  shall  receive  no  compensation 
and  shall  hold  office  until  such  exposition  shall  have  been 
closed  and  its  affairs  settled.  Said  four  members  of  said 
commission  shall  be  selected  from  different  sections  of  the 
state,  and  the  appointment  thereof  shall  be  made  by  the 
governor  of  the  state  during  the  month  of  February,  1911. 
The  commission  hereby  created  shall  have  the  exclusive 
charge  and  control  of  all  moneys  paid  into  the  Panama-Pa- 
cific International  Exposition  fund;  and  provided,  further, 
that  the  legislature  shall  pass  all  laws  necessary  to  carry  out 
the  provisions  of  this  act,  including  the  times  and  the  man- 
ner in  which  and  the  terms  and  conditions  upon  which 
moneys  shall  be  drawn  from  the  state  treasury  by  said  com- 
mission ;  where  contracts  and  vouchers  shall  be  filed ;  to 
whom  and  how  often  reports  shall  be  made ;  what  disposi- 
tion shall  be  made  of  any  sum  left  unexpended  or  received 
from  the  sale  of  any  property  of  buildings  purchased  or 
constructed  by  said  commission  for  the  use  of  said  exposi- 
tion, or  of  any  disposition  of  any  building  or  improvement 
constructed  by  said  commission  out  of  said  fund,  and  to 
provide  for  the  transfer  to  the  general  fund  of  the  state  of 
California  of  any  portion  of  said  Panama-Pacific  Interna- 
tional Exposition  fund  unused. 

The  commission  herein  created  is  authorized  and  directed 
to  make  such  proper  contracts  with  the  Panama-Pacific  In- 
ternational Exposition  Company,  a  corporation  organized 
under  the  laws  of  the  state  of  California  on  the  22d  day  of 


Art.  IV,  §§  23,  24       constitution  of  1879.  22 

March,  1910,  as  will  entitle  the  state  of  California  to  share 
proportionately  with  the  contributors  to  the  said  Panama- 
Pacific  International  Exposition  in  the  returns  from  the 
holding  of  said  exposition  at  the  city  and  county  of  San 
Francisco.     [Amendment  adopted  November  8,  1910.] 

Sec.  23.  The  members  of  the  legislature  shall  receive  for 
their  services  the  sum  of  one  thousand  dollars  each  for  each 
regular  session,  to  be  paid  at  such  times  during  the  session 
as  may  be  provided  by  law,  and  the  sum  of  ten  dollars  each 
for  each  day  while  in  attendance  at  a  special  or  extraordi- 
nary session,  for  a  number  of  days  not  exceeding  thirty; 
and  mileage  to  be  fixed  by  law,  all  paid  out  of  the  state  treas- 
ury ;  such  mileage  shall  not  exceed  ten  cents  per  mile ;  and 
each  member  shall  be  allowed  contingent  expenses  not  ex- 
ceeding twenty-five  dollars  per  member  for  each  regular 
biennial  session.  The  legislature  may  also  provide  for  addi- 
tional help ;  but  in  no  case  shall  the  total  expense  for  offi- 
cers, employees  and  attaches  exceed  the  sum  of  five  hundred 
dollars  per  day  for  either  house,  at  any  regular  or  biennial 
session,  nor  the  sum  of  two  hundred  dollars  per  day  for 
either  house  at  any  special  or  extraordinary  session,  nor 
shall  the  pay  of  any  officer,  employee  or  attache  be  in- 
creased after  he  is  elected  or  appointed.  [Amendment 
adopted  November  3,  1908.] 

Sec.  23a.  The  legislature  may  also  provide  for  the  em- 
ployment of  help ;  but  in  no  case  shall  the  total  expense  for 
officers,  employees  and  attaches  exceed  the  sum  of  five  hun- 
dred dollars  per  day  for  either  house,  at  any  regular  or 
biennial  session,  nor  the  sum  of  two  hundred  dollars  per  day 
for  either  house  at  any  special  or  extraordinary  session,  nor 
shall  the  pay  of  any  officer,  employee  or  attache  be  in- 
creased after  he  is  elected  or  appointed.  [New  section 
adopted  November  3,  1908.] 

Sec.  24.  Every  act  shall  embrace  but  one  subject,  which 
subject  shall  be  expressed  in  its  title.  But  if  any  subject 
shall  be  embraced  in  an  act  which  shall  not  be  expressed  in 
its  title,  such  act  shall  be  void  only  as  to  so  much  thereof 
as  shall  not  be  expressed  in  its  title.     No  laAv  shall  be  re- 


23  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  25 

vised  or  amended  by  reference  to  its  title ;  but  in  such  case 
the  act  revised  or  section  amended  shall  be  re-enacted  and 
published  at  length  as  revised  or  amended ;  and  all  laAvs  of 
the  state  of  California,  and  all  official  writings,  and  the 
executive,  legislative,  and  judicial  proceedings,  shall  be  con- 
ducted, preserved,  and  published  in  no  other  than  the  Eng- 
lish language. 

Sec.  25.  The  legislature  shall  not  pass  local  or  special 
laws  in  any  of  the  following  enumerated  cases,  that  is  to 
say: 

First — Regulating  the  jurisdiction  and  duties  of  justices 
of  the  peace,  police  judges,  and  of  constables. 

Second — For  the  punishment  of  crimes  and  misdemeanors. 

Third — Regulating  the  practice  of  courts  of  justice. 

Fourth — Providing  for  changing  the  venue  in  civil  or 
criminal  actions. 

Fifth — Granting  divorces. 

Sixth — Changing  the  names  of  persons  or  places. 

Seventh — Authorizing  the  laying  out,  opening,  altering, 
maintaining,  or  vacating  roads,  highways,  streets,  alleys, 
town  plots,  parks,  cemeteries,  graveyards,  or  public  groundfj 
not  ovvned  by  the  state. 

Eighth — Summoning  and  impaneling  grand  and  petit 
juries,  and  providing  for  their  compensation. 

Ninth — Regulating  county  and  toAvnship  business,  or  the 
election  of  county  and  township  officers. 

Tenth — For  the  assessment  or  collection  of  taxes. 

Eleventh — Providing  for  conducting  elections  or  desig- 
nating the  places  of  voting,  except  on  the  organization  of 
new  counties. 

Twelfth — Affecting  estates  of  deceased  persons,  minors, 
or  other  persons  under  legal  disabilities. 

Thirteenth — Extending  the  time  for  the  collection  of 
taxes. 

Fourteenth — Giving  effect  to  invalid  deeds,  wills,  or  other 
instruments. 

Fifteenth — Refunding  money  paid  into  the  state  treasury. 

Sixteenth — Releasing  or  extinguishing,  in  whole  or  in 
part,  the  indebtedness,  liability,  or  obligation  of  any  cor- 


Art.  IV,  §§  251/2,  26     CONSTITUTION  OF  1879.  21 

poration  or  person  to  this  state,  or  to  any  municipal  corpo- 
ration therein. 

Seventeenth — Declaring  any  person  of  age,  or  authoriz- 
ing any  minor  to  sell,  lease  or  encumber  his  or  her  property. 

Eighteenth — Legalizing,  except  as  against  the  state,  the 
unauthorized  or  invalid  act  of  any  officer. 

Nineteenth — Granting  to  any  corporation,  association,  or 
individual  any  special  or  exclusive  right,  privilege  or  immu- 
nity. 

Twentieth — Exempting  property  from  taxation. 

Twenty-first — Changing  county  seats. 

Twenty-second — Restoring  to  citizenship  persons  con- 
victed of  infamous  crimes. 

Twenty-third— Regulating  the  rate  of  interest  on  money. 

Twenty-fourth — Authorizing  the  creation,  extension,  or 
impairing  of  liens. 

Twenty-fifth — Chartering  or  licensing  ferries,  bridges,  or 
roads. 

Twenty-sixth — Remitting  fines,  penalties,  or  forfeitures. 

Twenty-seventh — Providing  for  the  management  of  com- 
mon schools. 

Twenty-eighth — Creating  offices,  or  prescribing  the  pow- 
ers and  duties  of  officers  in  counties,  cities,  cities  and  coun- 
ties, township,  election  or  school  districts. 

Twenty-ninth — Affecting  the  fees  or  salary  of  any  officer. 

Thirtieth — Changing  the  law  of  descent  or  succession. 

Thirty-first — Authorizing  the  adoption  or  legitimation  of 
children. 

Thirty-second — For  limitation  of  civil  or  criminal  actions. 

Thirty-third — In  all  other  cases  where  a  general  law  can 
be  made  applicable. 

Sec.  25I/2.  The  legislature  may  provide  for  the  division 
of  the  state  into  fish  and  game  districts,  and  may  enact  such 
laws  for  the  protection  of  fish  and  game  therein  as  it  may 
deem  appropriate  to  the  respective  districts,  [New  section 
adopted  November  4,  1902.] 

Sec.  26.  The  legislature  shall  have  no  power  to  author- 
ize lotteries  or  gift  enterprises  for  any  purpose  and  shall 


25  LEGISLATIVE   DEPARTMENT,  Art.  IV,  §  27 

pass  laws  to  prohibit  the  sale  in  this  state  of  lottery  or  gift 
enterprise  tickets  or  tickets  in  any  scheme  in  the  nature  of 
a  lottery.  The  legislature  shall  pass  laws  to  prohibit  the 
fictitious  buying  and  selling  of  the  shares  of  the  capital 
stock  of  corporations  in  any  stock  board,  stock  exchange  or 
stock  market  under  the  control  of  any  corporation  or  asso- 
ciation. All  contracts  for  the  purchase  or  sale  of  shares  of 
the  capital  stock  of  any  corporation  or  association  without 
any  intention  on  the  part  of  one  party  to  deliver  and  of  the 
other  party  to  receive  the  shares,  and  contemplating  merely 
the  payment  of  differences  betAveen  the  contract  and  mar- 
ket prices  on  divers  days,  shall  be  void,  and  neither  party 
to  any  such  contract  shall  be  entitled  to  recover  any  dam- 
ages for  failure  to  perform  the  same,  or  any  money  paid 
thereon,  in  any  court  of  this  state.  [Amendment  adopted 
November  3,  1908.] 

Sec.  27.  When  a  congressional  district  shall  be  com- 
posed of  two  or  more  counties,  it  shall  not  be  separated  by 
any  county  belonging  to  another  district.  No  county,  or 
city  and  county,  shall  be  divided  in  forming  a  congressional 
district  so  as  to  attach  one  portion  of  a  county,  or  city  and 
county,  to  another  county,  or  city  and  county,  except  in 
cases  where  one  county,  or  city  and  county,  has  more  popu- 
lation than  the  ratio  required  for  one  or  more  congressmen ; 
but  the  legislature  may  divide  any  county,  or  city  and 
county,  into  as  many  congressional  districts  as  it  may  be 
entitled  to  by  law.  Any  county,  or  city  and  county  con- 
taining a  population  greater  than  the  number  required  for 
one  congressional  district,  shall  be  formed  into  one  or  more 
congressional  districts,  according  to  the  population  thereof, 
and  any  residue,  after  forming  such  district  or  districts, 
shall  be  attached,  by  compact  adjoining  assembly  districts, 
to  a  contiguous  county  or  counties,  and  form  a  congres- 
sional district.  In  dividing  a  county,  or  city  and  county, 
into  congressional  districts,  no  assembly  district  shall  be 
divided  so  as  to  form  a  part  of  more  than  one  congressional 
district,  and  every  such  congressional  district  shall  be  com- 
posed of  compact  contiguous  assembly  districts. 


Art.  IV,  §§  28-31       constitution  of  1879.  26 

Sec.  28.  In  all  elections  by  the  legislature  the  members 
thereof  shall  vote  viva  voce,  and  the  vote  shall  be  entered 
on  the  journal. 

Sec.  29.  The  general  appropriation  bill  shall  contain  no 
item  or  items  of  appropriation  other  than  such  as  are  re- 
quired to  pay  the  salaries  of  the  state  officers,  the  expenses 
of  the  government,  and  of  the  institutions  under  the  ex- 
clusive control  and  management  of  the  state. 

Sec.  30.  Neither  the  legislature,  nor  any  county,  city 
and  county,  township,  school  district,  or  other  municipal 
corporation,  shall  ever  make  an  appropriation,  or  pay  from 
any  public  fund  whatever,  or  grant  anything  to  or  in  aid 
of  any  religious  sect,  church,  creed,  or  sectarian  purpose, 
or  help  to  support  or  sustain  any  school,  college,  university, 
hospital,  or  other  institution  controlled  by  any  religious 
creed,  church,  or  sectarian  denomination  whatever;  nor 
shall  any  grant  or  donation  of  personal  property  or  real 
estate  ever  be  made  by  the  state,  or  any  city,  city  and 
county,  town,  or  other  municipal  corporation,  for  any  re- 
ligious creed,  church,  or  sectarian  purpose,  Avhatever;  pro- 
vided, that  nothing  in  this  section  shall  prevent  the  legisla- 
ture granting  aid  pursuant  to  section  22  of  this  article. 

Sec.  31.  The  legislature  shall  have  no  pov/er  to  give  or 
to  lend,  or  to  authorize  the  giving  or  lending,  of  the  credit 
of  the  state,  or  of  any  county,  city  and  county,  city,  town- 
ship, or  other  political  corporation  or  subdivision  of  the 
state  now  existing,  or  that  may  be  hereafter  established,  in 
aid  of  or  to  any  person,  association,  or  corporation,  whether 
municipal  or  otherwise,  or  to  pledge  the  credit  thereof,  in 
any  manner  whatever,  for  the  payment  of  the  liabilities  of 
any  individual,  association,  municipal  or  other  corporation 
whatever;  nor  shall  it  have  power  to  make  any  gift,  or 
authorize  the  making  of  any  gift,  of  any  public  money  or 
thing  of  value  to  any  individual,  municipal  or  other  corpo- 
ration whatever;  provided,  that  nothing  in  this  section 
(shall  prevent  the  legislature  granting  aid  pursuant  to  sec- 
tion 22  of  this  article ;  and  it  shall  not  have  power  to  au- 
thorize the  state   or  any  political  subdivision  thereof,   to 


27  LEGISLATIVE   DEPABTMENT.      Art.  IV,  §§  32,  33 

subscribe  for  stock,  or  to  become- a  stockholder  in  any  cpr- 
poration)  shall  prevent  the  legislature  granting  aid  pursu- 
ant to  section  22  of  this  article ;  and  it  shall  not  have  power 
to  authorize  the  state,  or  any  political  subdivision  thereof, 
to  subscribe  for  stock,  or  to  become  a  stockholder  in  any 
corporation  whatever ;  provided,  further,  that  irrigation  dis- 
tricts for  the  purpose  of  acquiring  the  control  of  any  entire 
international  water  system  necessary  for  its  use  and  pur- 
poses, a  part  of  which  is  situated  in  the  United  States,  and 
a  part  thereof  in  a  foreign  country,  may  in  the  manner  au- 
thorized by  law,  acquire  the  stock  of  any  foreign  corpora- 
tion which  is  the  owner  of,  or  which  holds  the  title  to  the 
part  of  such  system  situated  in  a  foreign  country.  [Amend- 
ment adopted  November  3,  1914.] 

Note. — The  repetition  of  the  words  indicated  by  parentheses  in  the 
above  section  occurred  in  the  resolution  by  which  the  amendment  of 
the  above  section  was  proposed  to  the  people.  As  no  change  could  be 
made  thereafter  the  section  was  voted  on  and  adopted  in  the  above 
form. 

See.  32.  The  legislature  shall  have  no  power  to  grant, 
or  authorize  any  county  or  municipal  authority  to  grant, 
any  extra  compensation  or  allowance  to  any  public  officer, 
agent,  servant,  or  contractor,  after  service  has  been  ren- 
dered, or  a  contract  has  been  entered  into  and  performed, 
in  whole  or  in  part,  nor  to  pay,  or  to  authorize  the  payment 
of,  any  claim  hereafter  created  against  the  state,  or  any 
county  or  municipality  of  the  state,  under  any  agreement 
or  contract  made  without  express  authority  of  law ;  and  all 
such  unauthorized  agreements  or  contracts  shall  be  null  and 
void. 

Sec.  33.  The  legislature  shall  pass  laws  for  the  regula- 
tion and  limitation  of  the  charges  for  services  performed 
and  commodities  furnished  by  telegraph  and  gas  corpora- 
tions, and  the  charges  by  corporations  or  individuals  for 
storage  and  wharfage,  in  which  there  is  a  public  use ;  and 
where  laws  shall  provide  for  the  selection  of  any  person  or 
officer  to  regulate  and  limit  such  rates,  no  such  person  or 
officer  shall  be  selected  by  any  corporation  or  individual 


Art.  IV,  §§  34-36      constitution  of  1879.  28 

interested  in  the  business-  to  be  regulated,  and  no  person 
shall  be  selected  who  is  an  officer  or  stockholder  in  any  such 
corporation. 

Sec.  34.     No  bill  making  an  appropriation  of  money,  ex- 
cept the  general  appropriation  bill,  shall  contain  more  than* 
one  item  of  appropriation,  and  that  for  one  single  and  cer- 
tain purpose,  to  be  therein  expressed. 

Sec.  3'5.  Any  person  who  seeks  to  influence  the  vote  of 
a  member  of  the  legislature  by  bribery,  promise  of  reward, 
intimidation,  or  any  other  dishonest  means,  shall  be  guilty 
of  lobbying,  which  is  hereby  declared  a  felony ;  and  it  shall 
be  the  duty  of  the  legislature  to  provide,  by  law,  for  the 
punishment  of  this  crime.  Any  member  of  the  legislature 
who  shall  be  influenced,  in  his  vote  or  action  upon  any  mat- 
ter pending  before  the  legislature,  by  any  reward,  or  prom- 
ise of  future  reward,  shall  be  deemed  guilty  of  a  felony, 
and  upon  conviction  thereof,  in  addition  to  such  punish- 
ment as  may  be  provided  by  law,  shall  be  disfranchised  and 
forever  disqualified  from  holding  any  office  or  public  trust. 
Any  person  may  be  compelled  to  testify  in  any  lawful  inves- 
tigation or  judicial  proceeding  against  any  person  who  may 
be  charged  with  having  committed  the  offense  of  bribery  or 
corrupt  solicitation,  or  with  having  been  influenced  in  his 
vote  or  action,  as  a  member  of  the  legislature,  by  reward, 
or  promise  of  future  reward,  and  shall  not  be  permitted  to 
withhold  his  testimony  upon  the  ground  that  it  may  crimi- 
nate himself,  or  subject  him  to  public  infamy;  but  such 
testimony  shall  not  afterward  be  used  against  him  in  any 
judicial  proceeding,  except  for  perjury  in  giving  such  tes- 
timony. 

Sec.  36.  The  legislature  shall  have  power  to  establish  a 
system  of  state  highways  or  to  declare  any  road  a  state 
highway,  and  to  pass  all  laws  necessary  or  proper  to  con- 
struct and  maintain  the  same,  and  to  extend  aid  for  the  con- 
struction and  maintenance  in  whole  or  in  part  of  any 
county  highway.     [New  section  adopted  November  4,  1902.] 


29  EXECUTIVE   DEPARTMENT.  Art.  V,  §§1^8 

ARTICLE  V. 

EXECUTIVE   DEPAKTMENT. 

Section  1.  The  supreme  executive  power  of  this  state 
shall  be  vested  in  a  chief  magistrate,  who  shall  be  styled  the 
governor  of  the  state  of  California. 

Sec.  2.  The  governor  shall  be  elected  by  the  qualified 
electors  at  the  time  and  places  of  voting  for  members  of 
the  Assembly,  and  shall  hold  his  office  four  years  from  and 
after  the  first  Monday  after  the  first  day  of  January  sub- 
sequent to  his  election,  and  until  his  successor  is  elected  and 
qualified. 

Sec.  3'.  No  person  shall  be  eligible  to  the  office  of  gov- 
ernor who  has  not  been  a  citizen  of  the  United  States  and 
a  resident  of  this  state  five  years  next  preceding  his  election 
and  attained  the  age  of  twenty-five  years  at  the  time  of  such 
election. 

Sec.  4.  The  returns  of  every  election  for  governor  shall 
be  sealed  up  and  transmitted  to  the  seat  of  government,  di- 
rected to  the  speaker  of  the  assembly,  who  shall,  during 
the  first  week  of  the  session,  open  and  publish  them  in  the 
presence  of  both  houses  of  the  legislature.  The  person  hav- 
ing the  highest  number  of  votes  shall  be  governor;  but,  in 
case  any  two  or  more  have  an  equal  and  the  highest  number 
of  votes,  the  legislature  shall,  by  joint  vote  of  both  houses, 
choose  one  of  such  persons  so  having  an  equal  and  the  high- 
est number  of  votes  for  governor. 

Sec.  5.  The  governor  shall  be  commander-in-chief  of  the 
militia,  the  army  and  navy  of  this  state. 

Sec.  6.  He  shall  transact  all  executive  business  with  the 
officers  of  government,  civil  and  military,  and  may  require 
information,  in  Avriting,  from  the  officers  of  the  executive 
department  upon  any  subject  relating  to  the  duties  of  their 
respective  offices. 

Sec.  7.     He  shall  see  that  the  laws  are  faithfully  executed. 

Sec.  8.  When  any  office  shall,  from  any  cause,  become 
vacant,  and  no  mode  is  provided  by  the  Constitution  and 
law  for  filling  such  vacancy,  the  governor  shall  have  power 


Art.  V,  §§  9-16  CONSTITUTION  OF  1879.  30 

to  fill  such  vacancy  by  granting  a  commission,  which  shall 
expire  at  the  end  of  the  next  session  of  the  legislature,  or 
the  next  election  by  the  people. 

Sec.  9.  He  may,  on  extraordinary  occasions,  convene  the 
legislature  by  proclamation,  stating  the  purposes  for  which 
he  has  convened  it,  and  when  so  convened  it  shall  have  no 
power  to  legislate  on  any  subjects  other  than  those  speci- 
fied in  the  proclamation,  but  may  provide  for  the  expenses 
of  the  session,  and  other  matters  incidental  thereto. 

Sec.  10.  He  shall  communicate,  by  message  to  the  legis- 
lature, at  every  session,  the  condition  of  the  state,  and  rec- 
ommend such  matters  as  he  shall  deem  expedient. 

Sec.  11.  In  case  of  a  disagreement  between  the  two 
houses  with  respect  to  the  time  of  adjournment,  the  gov- 
ernor shall  have  power  to  adjourn  the  legislature  to  such 
time  as  he  may  think  proper ;  provided,  it  be  not  beyond  the 
time  fixed  for  the  meeting  of  the  next  legislature. 

Sec.  12.  No  person  shall,  while  holding  any  office  under 
the  United  States,  or  this  state,  exercise  the  office  of  gov- 
ernor, except  as  hereinafter  expressly  provided. 

Sec.  13.  There  shall  be  a  seal  of  this  state,  which  shall 
be  kept  by  the  governor,  and  used  by  him  officially,  and 
shall  be  called  "The  Great  Seal  of  the  State  of  California." 

Sec.  14.  All  grants  and  commissions  shall  be  in  the  name 
and  by  the  authority  of  the  people  of  the  state  of  California, 
sealed  with  the  great  seal  of  the  state,  signed  by  the  gov- 
ernor, and  countersigned  by  the  secretary  of  state. 

Sec.  15.  A  lieutenant-governor  shall  be  elected  at  the 
same  time  and  place,  and  in  the  same  manner,  as  the  gov- 
ernor, and  his  term  of  office  and  his  qualifications  shall  be 
the  same.  He  shall  be  president  of  the  senate,  but  shall 
only  have  a  casting  vote  therein.  [Amendment  adopted 
November  8,  1898.] 

Sec.  16.  In  case  of  the  impeachment  of  the  governor,  or 
his  removal  from  office,  death,  inability  to  discharge  the 
powers  and  duties  of  his  office,  resignation,  or  absence  from 
the  state,  the  powers  and  duties  of  the  office  shall  devolve 
upon  the  lieutenant-governor  for  the  residue  of  the  term, 


31  EXECUTIVE   DEPARTMENT,      Art.  V,  §§  17-19 

or  until  the  disability  shall  cease.  And  should  the  lieuten- 
ant-governor be  impeached,  displaced,  resign,  die,  or  be- 
come incapable  of  performing  the  duties  of  his  office,  or  be 
absent  from  the  state,  the  president  pro  tempore  of  the 
senate  shall  act  as  governor  until  the  vacancy  in  the  office 
of  governor  shall  be  filled  at  the  next  general  election  when 
members  of  the  legislature  shall  be  chosen,  or  until  such 
disability  of  the  lieutenant-governor  shall  cease.  In  case 
of  a  vacancy  in  the  office  of  governor  for  any  of  the  reasons 
above  named,  and  neither  the  lieutenant-governor  nor  the 
president  pro  tempore  of  the  senate  succeed  to  the  powers 
and  duties  of  governor,  then  the  powers  and  duties  of  such 
office  shall  devolve  upon  the  speaker  of  the  assembly,  until 
the  office  of  governor  shall  be  filled  at  such  general  election, 
[Amendment  adopted  November  8,  1898.] 

Sec.  17.  A  secretary  of  state,  a  controller,  a  treasurer,  an 
attorney  general,  and  a  surveyor-general  shall  be  elected 
at  the  same  time  and  places,  and  in  the  same  manner,  as  the 
governor  and  lieutenant-governor,  and  their  terms  of  office 
shall  be  the  same  as  that  of  the  governor. 

Sec.  18.  The  secretary  of  state  shall  keep  a  correct  rec- 
ord of  the  official  acts  of  the  legislative  and  executive  de- 
partments of  the  government,  and  shall,  Avhen  required,  lay 
the  same,  and  all  matters  relative  thereto,  before  either 
branch  of  the  legislature,  and  shall  perform  such  other 
duties  as  may  be  assigned  him  by  law. 

Sec.  19.  The  governor,  lieutenant-governor,  secretary  of 
state,  controller,  treasurer,  attorney  general  and  surveyor- 
general  shall,  at  stated  times  during  their  continuance  in 
office,  receive  for  their  services  a  compensation  which  shall 
not  be  increased  or  diminished  during  the  term  for  which 
they  shall  have  been  elected,  which  compensation  is  hereby 
fixed  for  the  following  officers,  as  follows:  governor,  ten 
thousand  dollars  per  annum ;  lieutenant-governor,  four 
thousand  dollars,  the  secretary  of  state,  controller,  treas- 
urer, and  surveyor-general,  five  thousand  dollars  each  per 
annum,  and  the  attorney  general,  six  thousand  dollars  per 
annum,  such  compensation  to  be  in  full  for  all  services  by 


Art.  VI,  §§  1, 2  CONSTITUTION  OF  1879.  32 

them  respectively  rendered  in  any  official  capacity  or  em- 
ployment whatsoever  during  their  respective  terms  of  office ; 
provided,  however,  that  the  legislature  may,  by  law,  dimin- 
ish the  compensation  of  any  or  all  of  such  officers,  but  in  no 
case  shall  have  the  power  to  increase  the  ^ame  above  the 
sums  hereby  fixed  by  this  Constitution.  No  salary  shall  be 
authorized  by  law  for  clerical  service  in  any  office  provided 
for  in  this  article,  exceeding  eighteen  hundred  dollars  per 
annum  for  each  clerk  employed.  The  legislature  may,  in 
its  discretion,  abolish  the  office  of  surveyor-general;  and 
none  of  the  officers  hereinbefore  named  shall  receive  for 
their  own  use  any  fees  or  perquisites  for  the  performance 
of  any  official  duty.  [Amendment  adopted  November  3, 
1908.] 

Sec.  20.  United  States  senators  shall  be  elected  by  the 
people  of  the  state  in  the  manner  provided  by  law.  [Amend- 
ment adopted  November  3,  1914.] 

ARTICLE  VI. 
JUDICIAL  DEPAETMENT. 

Section  1.  The  judicial  power  of  the  state  shall  be 
vested  in  the  senate,  sitting  as  a  court  of  impeachment,  in 
a  supreme  court,  district  courts  of  appeal,  superior  courts 
and  such  inferior  courts  as  the  legislature  may  establish  in 
any  incorporated  city  or  town,  township,  county,  or  city  and 
county.      [Amendment  adopted  October  10,  1911.] 

Sec.  2.  The  supreme  court  shall  consist  of  a  chief  justice 
and  six  associate  justices.  The  court  may  sit  in  depart- 
ments and  in  bank,  and  shall  always  be  open  for  the 
transaction  of  business.  There  shall  be  two  departments, 
denominated,  respectively,  department  one  and  department 
two.  The  chief  justice  shall  assign  three  of  the  associate 
justices  to  each  department,  and  such  assignment  may  be 
changed  by  him  from  time  to  time.  The  associate  justices 
shall  be  competent  to  sit  in  either  department,  and  may 
interchange  with  each  other  by  agreement  among  them- 
selves, or  as  ordered  by  the  chief  justice.  Each  of  the  de- 
partments  shall  have   the   power   to   hear   and   determine 


33  JUDICIAL   DEPARTMENT.  Art.  VI,  §  2 

causes,  and  all  questions  arising  therein,  subject  to  the  pro- 
visions hereinafter  contained  in  relation  to  the  court  in 
bank.  The  presence  of  three  justices  shall  be  necessary  to 
transact  any  business  in  either  of  the  departments,  except 
such  as  may  be  done  at  chambers,  and  the  concurrence  of 
three  justices  shall  be  necessary  to  pronounce  a  judgment. 
The  chief  justice  shall  apportion  the  business  to  the  depart- 
ments, and  may,  in  his  discretion,  order  any  cause  pending 
before  the  court  to  be  heard  and  decided  by  the  court  in 
bank.  The  order  may  be  made  before  or  after  judgment 
pronounced  by  a  department ;  but  where  a  cause  has  been 
allotted  to  one  of  the  departments,  and  a  judgment  pro- 
nounced thereon,  the  order  must  be  made  within  thirty 
days  after  such  judgment,  and  concurred  in  by  two  asso- 
ciate justices,  and  if  so  made  it  shall  have  the  effect  to 
vacate  and  set  aside  the  judgment.  Any  four  justices  may, 
either  before  or  after  judgment  by  a  department,  order  a 
case  to  be  heard  in  bank.  If  the  order  be  not  made  within 
the  time  above  limited,  the  judgment  shall  be  final.  No 
judgment  by  a  department  shall  become  final  until  the 
expiration  of  the  period  of  thirty  days  aforesaid,  unless 
approved  by  the  chief  justice,  in  writing,  with  the  concur- 
rence of  two  associate  justices.  The  chief  justice  may  con- 
vene the  court  in  bank  at  any  time,  and  shall  be  the  pre- 
siding justice  of  the  court  when  so  convened.  The  concur- 
rence of  four  justices  present  at  the  argument  shall  be 
necessary  to  pronounce  a  judgment  in  bank;  but  if  four  jus- 
tices, so  present,  do  not  concur  in  a  judgment,  then  all  the 
justices  qualified  to  sit  in  the  cause  shall  hear  the  argument ; 
but  to  render  a  judgment  a  concurrence  of  four  judges  shall 
be  necessary.  In  the  determination  of  causes,  all  decisions 
of  the  court,  in  bank  or  in  department,  shall  be  given  in 
writing,  and  the  grounds  of  the  decision  shall  be  stated. 
The  chief  justice  may  sit  in  either  department,  and  shall 
preside  when  so  sitting,  but  the  justices  assigned  to  each 
department  shall  select  one  of  their  number  as  presiding 
justice.  In  case  of  the  absence  of  the  chief  justice  from 
the  place  at  which  the  court  is  held,  or  his  inability  to  act, 
the  associate  justices  shall  select  one  of  their  own  number 

Constitution — 3 


Art.  VI,  §§  3,  4  CONSTITUTION  OF  1879.  34 

to  perforin  the  duties  and  exercise  the  powers  of  the  chief 
justice  during  such  absence  or  inability  to  act. 

See.  3.  The  chief  justice  and  the  associate  justices  shall 
be  elected  by  the  qualified  electors  of  the  state  at  large  at 
the  general  state  elections,  at  the  time  and  places  at  which 
state  officers  are  elected ;  and  the  term  of  office  shall  be 
twelve  years  from  and  after  the  first  Monday  after  the  first 
day  of  January  next  succeeding  their  election;  provided, 
that  the  six  associate  justices  elected  at  the  first  election 
shall,  at  their  first  meeting,  so  classify  themselves,  by  lot, 
that  two  of  them  shall  go  out  of  office  at  the  end  of  four 
years,  two  of  them  at  the  end  of  eight  years,  and  two  of 
them  at  the  end  of  twelve  years,  and  an  entry  of  such  classi- 
fication shall  be  made  in  the  minutes  of  the  court  in  bank, 
signed  by  them,  and  a  duplicate  thereof  shall  be  filed  in  the 
office  of  the  secretary  of  state.  If  a  vacancy  occur  in  the 
office  of  a  justice,  the  governor  shall  appoint  a  person  to 
hold  the  office  until  the  election  and  qualification  of  a  jus- 
tice to  fill  the  vacancy,  which  election  shall  take  place  at 
the  next  succeeding  general  election,  and  the  justice  so 
elected  shall  hold  the  office  for  the  remainder  of  the  unex- 
pired term.  The  first  election  of  the  justices  shall  be  at  the 
first  general  election  after  the  adoption  and  ratification  of 
this  Constitution. 

Sec.  4.  The  supreme  court  shall  have  appellate  jurisdic 
tion  on  appeal  from  the  superior  courts  in  all  cases  in 
equity,  except  such  as  arise  in  justices'  courts ;  also,  in  all 
cases  at  law  which  involve  the  title  or  possession  of  real 
estate,  or  the  legality  of  any  tax,  impost,  assessment,  toll, 
or  municipal  fine,  or  in  which  the  demand,  exclusive  of  in- 
terest, or  the  value  of  the  property  in  controversy,  amounts 
to  two  thousand  dollars;  also,  in  all  such  probate  matters 
as  may  be  provided  by  law ;  also,  on  questions  of  law  alone, 
in  all  criminal  cases  where  judgment  of  death  has  been  ren- 
dered; the  said  court  shall  also  have  appellate  jurisdiction 
in  all  cases,  matters  and  proceedings  pending  before  a  dis- 
trict court  of  appeal,  which  shall  be  ordered  by  the  supreme 
court  to  be  transferred  to  itself  for  hearing  and  decision, 
as  hereinafter  provided.     The  said  court  shall   also  have 


35  JUDICIAL   DEPARTMENT.  Art.  VI,  §  4 

power  to  issue  writs  of  mandamus,  certiorari,  prohibition, 
and  habeas  corpus,  and  all  other  writs  necessary  or  proper 
to  the  complete  exercise  of  its  appellate  jurisdiction.  Each 
of  the  justices  shall  have  power  to  issue  writs  of  habeas  cor- 
pus to  any  part  of  the  state,  upon  petition  by  or  on  behalf 
of  an}'-  person  held  in  actual  custody,  and  may  make  such 
writs  returnable  before  himself  or  the  supreme  court,  or 
before  any  district  court  of  appeal,  or  before  any  judge 
thereof,  or  before  any  superior  court  in  the  state,  or  before 
any  judge  thereof. 

The  state  is  hereby  divided  into  three  appellate  districts, 
in  each  of  which  there  shall  be  a  district  court  of  appeal 
consisting  of  three  justices.  The  first  district  shall  embrace 
the  following  counties :  San  Francisco,  Marin,  Contra  Costa, 
Alameda,  San  Mateo,  Santa  Clara,  Fresno,  Santa  Cruz,  Mon- 
terey, and  San  Benito. 

The  second  district  shall  embrace  the  following  counties: 
Tulare,  Kings,  San  Luis  Obispo,  Kern,  Inyo,  Santa  Barbara, 
Ventura,  Los  Angeles,  San  Bernardino,  Orange,  Riverside 
and  San  Diego. 

The  third  district  shall  embrace  the  following  counties: 
Del  Norte,  Siskiyou,  Modoc,  Humboldt,  Trinity,  Shasta, 
Lassen,  Tehama,  Plumas,  Mendocino,  Lake,  Colusa,  Glenn, 
Butte,  Sierra,  Sutter,  Yuba,  Nevada,  Sonoma,  Napa,  Yolo, 
Placer,  Solano,  Sacramento,  El  Dorado,  San  Joaquin,  Ama- 
dor, Calaveras,  Stanislaus,  Mariposa,  Madera,  Merced,  Tuol- 
umne, Alpine  and  Mono. 

The  supreme  court,  by  orders  entered  in  its  minutes,  may 
from  time  to  time  remove  one  or  more  counties  from  one 
appellate  district  to  another,  but  no  county  not  contiguous 
to  another  county  of  a  district  shall  be  added  to  such  dis- 
trict. 

Said  district  courts  of  appeal  shall  hold  their  regular  ses- 
sions respectively  at  San  Francisco,  Los  Angeles,  and  Sacra- 
mento, and  they  shall  always  be  open  for  the  transaction  of 
business. 

The  district  courts  of  appeal  shall  have  appellate  juris- 
diction on  appeal  from  the  superior  courts  in  all  cases  at 
law  in  which  the  demand,  exclusive  of  interest,  or  the  value 


Art.  VI,  §  4  CONSTITUTION  OP  1879.  36 

of  the  property  in  controversy,  amounts  to  three  hundred 
dollars,  and  does  not  amount  to  two  thousand  dollars ;  also, 
in  all  eases  of  forcible  and  unlaAvful  entry  and  detainer 
(except  such  as  arise  in  justices'  courts),  in  proceedings  in 
insolvency,  and  in  actions  to  prevent  or  abate  a  nuisance; 
in  proceedings  of  mandamus,  certiorari  and  prohibition, 
usurpation  of  office,  contesting  elections  and  eminent  do- 
main, and  in  such  other  special  proceedings  as  may  be 
provided  by  law  (excepting  cases  in  which  appellate  juris- 
diction is  given  to  the  supreme  court)  ;  also  on  questions  of 
law  alone,  in  all  criminal  cases  prosecuted  by  indictment  or 
information  in  a  court  of  record,  excepting  criminal  cases 
where  judgment  of  death  has  been  rendered.  The  said 
courts  shall  also  have  appellate  jurisdiction  in  all  cases,  mat- 
ters, and  proceedings  pending  before  the  supreme  court 
which  shall  be  ordered  by  the  supreme  court  to  be  trans- 
ferred to  a  district  court  of  appeal  for  hearing  and 
decision.  The  said  courts  shall  also  have  power  to  issue 
writs  of  mandamus,  certiorari,  prohibition  and  habeas  cor- 
pus, and  all  other  writs  necessary  or  proper  to  the  com- 
plete exercise  of  their  appellate  jurisdiction.  Each  of  the 
justices  thereof  shall  have  power  to  issue  writs  of  habeas 
corpus  to  any  part  of  his  appellate  district  upon  petition 
by  or  on  behalf  of  any  person  held  in  actual  custody,  and 
may  make  such  writs  returnable  before  himself  or  the  dis- 
trict court  of  appeal  of  his  district,  or  before  any  superior 
court  within  his  district,  or  before  any  judge  thereof. 

The  supreme  court  shall  have  poAver  to  order  any  cause 
pending  before  the  supreme  court  to  be  heard  and  deter- 
mined by  a  district  court  of  appeal,  and  to  order  any  cause 
pending  before  a  district  court  of  appeal  to  be  heard  and  de- 
termined by  the  supreme  court.  The  order  last  mentioned 
may  be  made  before  judgment  has  been  pronounced  by  a 
district  court  of  appeal,  or  within  thirty  days  after  such 
judgment  shall  have  become  final  therein.  The  judgments 
of  the  district  courts  of  appeal  shall  become  final  therein 
upon  the  expiration  of  thirty  days  after  the  same  shall  have 
been  pronounced. 


37  JUDICIAL   DEPARTMENT,  Art.  VI,  §  4 

The  supreme  court  shall  have  power  to  order  causes  pend- 
ing before  a  district  court  of  appeal  for  one  district  to  be 
transferred  to  the  district  court  of  appeal  of  another  dis- 
trict for  hearing  and  decision. 

The  justices  of  the  district  courts  of  appeal  shall  be 
elected  by  the  qualified  electors  within  their  respective  dis- 
tricts, at  the  general  state  elections  at  the  times  and  places 
at  which  justices  of  the  supreme  court  are  elected.  Their 
terms  of  office  and  salaries  shall  be  the  same  as  those  of 
justices  of  the  supreme  court,  and  their  salaries  shall  be 
paid  by  the  state.  Upon  the  ratification  by  the  people  of 
this  amendment  the  governor  shall  appoint  nine  persons  to 
serve  as  justices  of  the  district  courts  of  appeal  until  the 
first  Monday  after  the  first  day  of  January  in  the  year  1907 ; 
provided,  that  not  more  than  six  of  said  persons  shall  be 
members  of  the  same  political  party.  At  the  election  in  the 
year  1906  nine  of  such  justices  shall  be  elected  as  above 
provided,  and  the  justices  of  each  district  court  of  appeal 
shall  so  classify  themselves  by  lot  that  one  of  them  shall  go 
out  of  office  at  the  end  of  four  years,  one  of  them  at  the  end 
of  eight  years,  and  one  of  them  at  the  end  of  twelve  years ; 
an  entry  of  such  classification  shall  be  made  in  the  minutes 
of  the  court,  signed  by  the  three  justices  thereof,  and  a 
duplicate  thereof  filed  in  the  office  of  the  secretary  of  state. 
If  any  vacancy  occur  in  the  office  of  a  justice  of  the  dis- 
trict courts  of  appeal,  the  governor  shall  appoint  a  person 
to  hold  office  until  the  election  and  qualification  of  a  justice 
to  fill  the  vacancy ;  such  election  shall  take  place  at  the  next 
succeeding  general  state  election  as  aforesaid;  the  justice 
then  elected  shall  hold  the  office  for  the  unexpired  term. 

One  of  the  justices  of  each  of  the  district  courts  of  appeal 
shall  be  the  presiding  justice  thereof,  and  as  such  shall  be 
appointed  or  elected  as  the  case  may  be.  The  presence  of 
three  justices  shall  bo  necessary  for  the  transaction  of  any 
business  by  such  court,  except  such  as  may  be  done  at  cham- 
bers, and  the  concurrence  of  three  justices  shall  be  neces- 
sary to  pronounce  a  judgment. 

"Whenever  any  justice  of  the  supreme  court  is  for  any  rea- 
son disqualified  or  unable  to  act  in  a  cause  pending  before 


Art.  VI,  §§  4y2-5      CONSTITUTION  OF  1879.  38 

it,  the  remaining  justices  may  select  one  of  the  justices  of 
the  district  court  of  appeal  to  act  pro  tempore  in  the  place 
of  the  justice  so  disqualified  or  unable  to  act. 

Whenever  any  justice  of  a  district  court  of  appeal  is  for 
any  reason  disqualified  or  unable  to  act  in  any  cause  pend- 
ing before  it,  the  supreme  court  may  appoint  a  justice  of 
the  district  court  of  appeal  of  another  district,  or  a  judge  of 
a  superior  court  who  has  not  acted  in  the  cause  in  the  court 
below,  to  act  pro  tempore  in  the  place  of  the  justice  so  dis- 
qualified or  unable  to  act. 

No  appeal  taken  to  the  supreme  court  or  to  a  district 
court  of  appeal  shall  be  dismissed  for  the  reason  only  that 
the  same  was  not  taken  to  the  proper  court,  but  the  cause 
shall  be  transferred  to  the  proper  court  upon  such  terms 
as  to  costs  or  otherwise  as  may  be  just,  and  shall  be  pro- 
ceeded with  therein  as  if  regularly  appealed  thereto. 

All  statutes  now  in  force  allowing,  providing  for,  or 
regulating  appeals  to  the  supreme  court  shall  apply  to  ap- 
peals to  the  district  courts  of  appeal  so  far  as  such  statutes 
are  not  inconsistent  with  this  article  and  until  the  legisla- 
ture shall  otherwise  provide. 

The  supreme  court  shall  make  and  adopt  rules  not  incon- 
sistent with  law  for  the  government  of  the  supreme  court 
and  of  the  district  courts  of  appeal  and  of  the  officers 
thereof,  and  for  regulating  the  practice  in  said  courts. 
[Amendment  adopted  November  8,  1904.] 

Sec.  41/2.  No  judgment  shall  be  set  aside,  or  new  trial 
granted,  in  any  case,  on  the  ground  of  misdirection  of  the 
jury,  or  of  the  improper  admission  or  rejection  of  evidence, 
or  for  any  error  as  to  any  matter  of  pleading,  or  for  any 
error  as  to  any  matter  of  procedure,  unless,  after  an  exami- 
nation of  the  entire  cause,  including  the  evidence,  the  court 
shall  be  of  the  opinion  that  the  error  complained  of  has 
resulted  in  a  miscarriage  of  justice.  [Amendment  adopted 
November  3,  1914.] 

Sec.  5.  The  superior  court  shall  have  original  jurisdic- 
tion in  all  cases  in  equity,  and  in  all  cases  at  law  which 
involve  the  title  or  possession  of  real  property,  or  the  legal- 


39  JUDICIAL   DEPARTMENT.  Art.  VI,  §  6 

ity  of  any  tax,  impost,  assessment,  toll,  or  municipal  fine, 
and  in  all  other  cases  in  which  the  demand,  exclusive  of 
interest  or  the  value  of  the  property  in  controversy  amounts 
to  three  hundred  dollars,  and  in  all  criminal  cases  amount- 
ing to  felony,  and  cases  of  misdemeanor  not  otherwise 
provided  for;  of  actions  of  forcible  entry  and  detainer; 
of  proceedings  in  insolvency ;  of  actions  to  prevent  or 
abate  a  nuisance ;  of  all  matters  of  probate ;  of  divorce 
and  for  annulment  of  marriage ;  and  of  all  such  special 
cases  and  proceedings  as  are  not  otherwise  provided  for ; 
and  said  court  shall  have  the  power  of  naturalization,  and 
to  issue  papers  therefor.  They  shall  have  appellate  juris- 
diction in  such  cases  arising  in  inferior  courts  in  their  re- 
spective counties  as  may  be  prescribed  by  law.  They  shall 
be  always  open  (legal  holidays  and  nonjudicial  days  ex- 
cepted), and  their  process  shall  extend  to  all  parts  of  the 
state ;  provided,  that  all  actions  for  the  recovery  of  the  pos- 
session of,  quieting  the  title  to,  or  for  the  enforcement  of 
liens  upon  real  estate,  shall  be  commenced  in  the  county  in 
which  the  real  estate,  or  any  part  thereof,  affected  by  such 
action  or  actions,  is  situated.  Said  courts,  and  their  judges, 
shall  have  power  to  issue  writs  of  mandamus,  certiorari, 
prohibition,  quo  warranto,  and  habeas  corpus,  on  petition 
by  or  on  behalf  of  any  person  in  actual  custody,  in  their 
respective  counties.  Injunctions  and  writs  of  prohibition 
may  be  issued  and  served  on  legal  holidays  and  nonjudicial 
days.      [Amendment  adopted  October  10,  1911.] 

Sec.  6.  There  shall  be  in  each  of  the  organized  counties, 
or  cities  and  counties,  of  the  state,  a  superior  court,  for  each 
of  which  at  least  one  judge  shall  be  elected  by  the  qualified 
electors  of  the  county,  or  city  and  county,  at  the  general  state 
election ;  provided,  that  until  otherwise  ordered  by  the  legis- 
lature, only  one  judge  shall  be  elected  for  the  counties  of 
Yuba  and  Sutter,  and  that  in  the  city  and  county  of  San 
Francisco  there  shall  be  elected  twelve  judges  of  the  superior 
court,  any  one  or  more  of  whom  may  hold  court.  There  may 
be  as  many  sessions  of  said  court,  at  the  same  time,  as  there 
are  judges  thereof.  The  said  judges  shall  choose,  from  their 
own  number,  a  presiding  judge,  who  may  be  removed  at 


Art.  VI,  §§  7,  8  CONSTITUTION  OF  1879.  40 

their  pleasure.  He  shall  distribute  the  business  of  the  court 
among  the  judges  thereof,  and  prescribe  the  order  of  busi- 
ness. The  judgments,  orders,  and  proceedings  of  any  ses- 
sion of  the  superior  court  held  by  any  one  or  more  of  the 
judges  of  said  courts,  respectively,  shall  be  equally  effec- 
tual as  if  all  the  judges  of  said  respective  courts  presided  at 
such  session.  In  each  of  the  counties  of  Sacramento,  San 
Joaquin,  Los  Angeles,  Sonoma,  Santa  Clara,  and  Alameda 
there  shall  be  elected  two  such  judges.  The  term  of  office 
of  judges  of  the  superior  courts  shall  be  six  years  from  and 
after  the  first  Monday  of  January,  next  succeeding  their 
election;  provided,  that  the  twelve  judges  of  the  superior 
court  elected  in  the  city  and  county  of  San  Francisco,  at 
the  first  election  held  under  this  Constitution,  shall  at  their 
first  meeting  so  classify  themselves,  by  lot,  that  four  of 
them  shall  go  out  of  office  at  the  end  of  two  years,  and  four 
of  them  shall  go  out  of  office  at  the  end  of  four  years,  and 
four  of  them  shall  go  out  of  office  at  the  end  of  six  years, 
and  an  entry  of  such  classification  shall  be  made  in  the 
minutes  of  the  court,  signed  by  them,  and  a  duplicate 
thereof  filed  in  the  office  of  the  secretary  of  state.  The  first 
election  of  judges  of  the  superior  courts  shall  take  place  at 
the  first  general  election  held  after  the  adoption  and  ratifi- 
cation of  this  Constitution.  If  a  vacancy  occur  in  the  office 
of  judge  of  the  superior  court,  the  governor  shall  appoint 
a  person  to  hold  the  office  until  the  election  and  qualifi- 
cation of  a  judge  to  fill  the  vacancy,  which  election  shall 
take  place  at  the  next  succeeding  general  election,  and  the 
judge  so  elected  shall  hold  office  for  the  remainder  of  the 
unexpired  term. 

Sec.  7.  In  any  county,  or  city  and  county,  other  than 
the  city  and  county  of  San  Francisco,  in  which  there  shall 
be  more  than  one  judge  of  the  superior  court,  the  judges  of 
such  court  may  hold  as  many  sessions  of  said  court  at  the 
same  time  as  there  are  judges  thereof,  and  shall  apportion 
the  business  among  themselves  as  equally  as  may  be. 

Sec.  8.  A  judge  of  any  superior  court  may  hold  a  supe- 
rior court  in  any  county,  at  the  request  of  a  judge  of  the 


41  JUDICIAL    DEPARTMENT.  Art.  VI,  §§  9,  10 

superior  court  thereof,  and  upon  the  request  of  the  gov- 
ernor it  shall  be  his  duty  so  to  do.  But  a  cause  in  the  supe- 
rior court  may  be  tried  by  a  judge  pro  tempore,  who  must 
be  a  member  of  the  bar,  agreed  upon  in  writing  by  the  par- 
ties litigant,  or  their  attorneys  of  record,  and  sworn  to  try 
the  cause,  and  the  person  so  selected  shall  be  empowered  to 
act  in  such  capacity  in  all  further  proceedings  in  any  suit 
or  proceedings  tried  before  him  until  the  final  determina- 
tion thereof.  There  may  be  as  many  sessions  of  a  superior 
court  at  the  same  time  as  there  are  judges  thereof,  includ- 
ing any  judge  or  judges  acting  upon  request ,  or  any  judge 
or  judges  pro  tempore.  The  judgment,  orders,  acts  and 
proceedings  of  any  session  of  any  superior  court  held  by  one 
or  more  judges  acting  upon  request,  or  judge  or  judges  pro 
tempore,  shall  be  equally  effective  as  if  the  judge  or  all  of 
the  judges  of  such  court  presided  at  such  session.  [Amend- 
ment adopted  November  8,  1910.] 

Sec.  9.  The  legislature  shall  have  no  power  to  grant 
leave  of  absence  to  any  judicial  officer ;  and  any  such  officer 
who  shall  absent  himself  from  the  state  for  more  than  sixty 
consecutive  days  shall  be  deemed  to  have  forfeited  his  of- 
fice. The  legislature  of  the  state  may,  at  any  time,  two- 
thirds  of  the  members  of  the  senate  and  two-thirds  of  the 
members  of  the  assembly  voting  therefor,  increase  or  di- 
minish the  number  of  judges  of  the  superior  court  in  any 
county,  or  city  or  county,  in  the  state ;  provided,  that  no 
such  reduction  shall  affect  any  judge  who  has  been  elected. 

Sec.  10.  Justices  of  the  supreme  court,  and  of  the  district 
courts  of  appeal,  and  judges  of  the  superior  courts  may  be 
removed  by  concurrent  resolution  of  both  houses  of  the 
legislature  adopted  by  a  two-thirds  vote  of  each  house.  All 
other  judicial  officers,  except  justices  of  the  peace,  may  be 
removed  by  the  senate  on  the  recommendation  of  the  gov- 
ernor; but  no  removal  shall  be  made  by  virtue  of  this  sec- 
tion unless  the  cause  thereof  be  entered  on  the  journal,  nor 
unless  the  party  complained  of  has  been  served  Avith  a  copy 
of  the  complaint  against  him  and  shall  have  had  an  oppor- 
tunity of  being  heard  in  his  defense.     On  the  question  of 


Art.  VI,  §§  11-14      CONSTITUTION  OF  1879.  42 

]-emoval  the  ayes  and  noes  shall  be  entered  on  the  journal. 
[Amendment  adopted  November  8,  1904.] 

Sec.  11.  The  legislature  shall  determine  the  number  of 
each  of  the  inferior  courts  in  incorporated  cities  or  towns, 
and  in  townships,  counties,  or  cities  and  counties,  accord- 
ing to  the  population  thereof  and  the  number  of  judges  or 
justices  thereof,  and  shall  fix  by  law  the  powers,  duties  and 
responsibilities  of  each  of  such  courts  and  of  the  judges  or 
justices  thereof;  provided,  such  powers  shall  not  in  any 
case  trench  upon  the  jurisdiction  of  the  several  courts  of 
record,  except  that  the  legislature  shall  provide  that  said 
courts  shall  have  concurrent  jurisdiction  with  the  superior 
courts  in  cases  of  forcible  entry  and  detainer,  where  the 
rental  value  does  not  exceed  twenty-five  dollars  per  month, 
and  where  the  whole  amount  of  damages  claimed  does  not 
exceed  two  hundred  dollars,  and  in  cases  to  enforce  and 
foreclose  liens  on  personal  property  when  neither  the 
amount  of  liens  nor  the  value  of  the  property  amounts  to 
three  hundred  dollars.  [Amendment  adopted  October  10, 
1911.] 

Sec.  12.  The  supreme  court,  the  district  courts  of  appeal, 
the  superior  courts,  and  such  other  courts  as  the  legislature 
shall  prescribe,  shall  be  courts  of  record.  [Amendment 
adopted  November  8,  1904.] 

Sec.  13.  The  legislature  shall  fix  by  law  the  jurisdiction 
of  any  inferior  courts  which  may  be  established  in  pursu- 
ance of  section  1  of  this  article,  and  shall  fix  by  law  the 
powers,  duties,  and  responsibilities  of  the  judges  thereof. 

Sec.  14.  The  county  clerks  shall  be  ex-officio  clerks  of 
the  courts  of  record  in  and  for  their  respective  counties,  or 
cities  and  counties.  The  legislature  may  also  provide  for 
the  appointment,  by  the  several  superior  courts,  of  one  or 
more  commissioners  in  their  respective  counties,  or  cities 
and  counties,  wdth  authority  to  perform  chamber  business  of 
the  judges  of  the  superior  courts,  to  take  depositions,  and 
perform  such  other  business  connected  with  the  administra- 
tion of  justice  as  may  be  prescribed  by  law.  [Amendment 
adopted  October  10,  1911.] 


43  JUDICIAL   DEPARTMENT.        Art.  VI,  §§  15-18 

Sec.  15.  No  judicial  officer,  except  court  commissioners, 
shall  receive  to  his  own  use  any  fees  or  perquisites  of  office ; 
provided,  that  justices  of  the  peace  now  holding  office  shall 
receive  to  their  own  use  such  fees  as  are  now  allowed  by 
law  during  the  terms  for  which  they  have  been  elected. 
[Amendment  adopted  October  10,  1911.] 

Sec.  16.  The  legislature  shall  provide  for  the  speedy  pub- 
lication of  such  opinions  of  the  supreme  court  and  of  the 
district  courts  of  appeal  as  the  supreme  court  may  deem 
expedient,  and  all  opinions  shall  be  free  for  publication  by 
any  person.     [Amendment  adopted  November  8,  1904.] 

Sec.  17.  The  justices  of  the  supreme  court  and  of  the 
district  courts  of  appeal,  and  the  judges  of  the  superior 
courts,  shall  severally,  at  stated  times  during  their  continu- 
ance in  office,  receive  for  their  service  such  compensation  as 
is  or  shall  be  provided  by  law.  The  salaries  of  the  judges 
of  the  superior  court,  in  all  counties  having  but  one  judge, 
and  in  all  counties  in  which  the  terms  of  the  judges  of  the 
superior  court  expire  at  the  same  time,  shall  not  hereafter 
be  increased  or  diminished  after  their  election,  nor  during 
the  term  for  which  they  shall  have  been  elected.  Upon  the 
adoption  of  this  amendment  the  salaries  then  established  by 
law  shall  be  paid  uniformly  to  the  justices  and  judges  thou 
in  office.  The  salaries  of  the  justices  of  the  supreme  court 
and  of  the  district  courts  of  appeal  shall  be  paid  by  the 
state.  One-half  of  the  salary  of  each  superior  court  judge 
shall  be  paid  by  the  state ;  and  the  other  half  thereof  shall 
be  paid  by  the  county  for  which  he  is  elected.  On  and  after 
the  first  day  of  January,  A.  D.  one  thousand  nine  hundred 
and  seven,  the  justices  of  the  supreme  court  shall  each  re- 
ceive an  annual  salary  of  eight  thousand  dollars,  and  the 
justices  of  the  several  district  courts  of  appeal  shall  each 
receive  an  annual  salary  of  seven  thousand  dollars ;  the  said 
salaries  to  be  payable  monthly.  [Amendment  adopted  No- 
vember 6,  1906.] 

Sec.  18.  The  justices  of  the  supreme  court,  and  of  the 
district  courts  of  appeal,  and  the  judges  of  the  superior 
courts  shall  be  ineligible  to  any  other  office  or  public  em- 


Art.  VI,  §§  19-2i      CONSTITUTION  OF  1879.  ^44 

ployment  than  a  judicial  office  or  employment  during  the 
term  for  which  they  shall  have  been  elected.  [Amendment 
adopted  November  8,  1904.] 

Sec.  19.  Judges  shall  not  charge  juries  with  respect  to 
matters  of  fact,  but  may  state  the  testimony  and  declare  the 
law. 

Sec.  20.  The  style  of  process  shall  be  "The  People  of  the 
State  of  California,"  and  all  prosecutions  shall  be  conducted 
in  their  name  and  by  their  authority. 

Sec.  21.  The  supreme  court  shall  appoint  a  clerk  of  the 
supreme  court;  provided,  however,  that  any  person  elected 
to  the  office  of  clerk  of  the  supreme  court  before  the  adop- 
tion hereof,  shall  continue  to  hold  such  office  until  the  ex- 
piration of  the  term  for  Avhich  he  may  have  been  elected. 
Said  court  may  also  appoint  a  reporter  and  not  more  than 
three  assistant  reporters  of  the  decisions  of  the  supreme 
court  and  of  the  district  courts  of  appeal.  Each  of  the  dis- 
trict courts  of  appeal  shall  appoint  its  own  clerk.  All  the 
officers  herein  mentioned  shall  hold  office  and  be  removable 
at  the  pleasure  of  the  courts  by  which  they  are  severally 
appointed,  and  they  shall  receive  such  compensation  as  shall 
be  prescribed  by  law,  and  discharge  such  duties  as  shall  be 
prescribed  by  law,  or  by  the  rules  or  orders  of  the  courts 
by  which  they  are  severally  appointed.  [Amendment 
adopted  October  10,  1911.] 

Sec.  22.  No  judge  of  a  court  of  record  shall  practice  law 
in  any  court  of  this  state  during  his  continuance  in  office. 

Sec.  23.  No  one  shall  be  eligible  to  the  office  of  a  justice 
of  the  supreme  court,  or  of  a  district  court  of  appeal,  or  of 
a  judge  of  a  superior  court,  unless  he  shall  have  been  ad- 
mitted to  practice  before  the  supreme  court  of  the  state. 
[Amendment  adopted  November  8,  1904.] 

Sec.  24.  No  judge  of  the  supreme  court  nor  of  a  district 
court  of  appeal,  nor  of  a  superior  court,  shall  draw  or  re- 
ceive any  monthly  salary  unless  he  shall  make  and  subscribe 
an  affidavit  before  an  officer  entitled  to  administer  oaths, 
that  no  cause  in  his  court  remains  pending  and  undecided, 
that  has  been  submitted  for  decision  for  a  period  of  ninety 


45  PARDONING   POWER.  Art.  VII,  §  1 

days.  In  the  determination  of  causes  all  decisions  of  the 
supreme  court  and  of  the  district  courts  of  appeal  shall  be 
given  in  writing,  and  the  grounds  of  the  decisions  shall  be 
stated.  AVhen  the  justices  of  a  district  court  of  appeal  are 
unable  to  concur  in  a  judgment,  they  shall  give  their  sev- 
eral opinions  in  writing  and  cause  copies  thereof  to  be  for- 
warded to  the  supreme  court.  [Amendment  adopted  No- 
vember 8,  1904.] 

Sec.  25.  The  present  supreme  court  commission  shall  be 
abolished  at  the  expiration  of  its  present  term  of  office,  and 
no  supreme  court  commission  shall  be  created  or  provided 
for  after  January  1,  A.  D.  1905.  [New  section  adopted  No- 
vember 8,  1904.] 

ARTICLE  VII. 

PARDONING  POWER. 

Section  1.  The  governor  shall  have  the  power  to  grant 
reprieves,  pardons,  and  commutations  of  sentence,  after  con- 
viction^ for  all  offenses  except  treason  and  cases  of  impeach- 
ment, upon  such  conditions,  and  Avith  such  restrictions  and 
limitations,  as  he  may  think  proper,  subject  to  such  regula- 
tions as  may  be  provided  by  law  relative  to  the  manner  of 
applying  for  pardons.  Upon  conviction  for  treason,  the 
governor  shall  have  power  to  suspend  the  execution  of  the 
sentence  until  the  case  shall  be  reported  to  the  legislature 
at  its  next  meeting,  when  the  legislature  shall  either  pardon, 
direct  the  execution  of  the  sentence,  or  grant  a  further  re- 
prieve. The  governor  shall  communicate  to  the  legislature, 
at  the  beginning  of  every  session,  every  case  of  reprieve  or 
pardon  granted,  stating  the  name  of  the  convict,  the  crime 
for  which  he  was  convicted,  the  sentence,  its  date,  the  date 
of  the  pardon  or  reprieve,  and  the  reasons  for  granting  the 
same.  Neither  the  governor  nor  the  legislature  shall  have 
power  to  grant  pardons,  or  commutations  of  sentence,  in 
any  case  where  the  convict  has  been  twice  convicted  of  a 
felony,  unless  upon  the  Avritten  recommendation  of  a  ma- 
jority of  the  judges  of  the  supreme  court. 


Art.  IX,  §§  1-3  CONSTITUTION  OF  1879.  46 

ARTICLE  VIII. 

MILITIA. 

Section  1.  The  legislature  shall  provide,  by  law,  for  or- 
ganizing and  disciplining  the  militia,  in  such  manner  as  it 
may  deem  expedient,  not  incompatible  with  the  Constitution 
and  laws  of  the  United  States.  Officers  of  the  militia  shall 
be  elected  or  appointed  in  such  manner  as  the  legislature 
shall,  from  time  to  time,  direct,  and  shall  be  commissioned 
by  the  governor.  The  governor  shall  have  power  to  call 
forth  the  militia  to  execute  the  laws  of  the  state,  to  suppress 
insurrections,  and  repel  invasions. 

Sec.  2.  All  military  organizations  provided  for  by  this 
Constitution,  or  any  law  of  this  state,  and  receiving  state 
support,  shall,  while  under  arms,  either  for  ceremony  or 
duty,  carry  no  device,  banner,  or  flag  of  any  state  or  nation, 
except  that  of  the  United  States  or  the  state  of  California. 

ARTICLE  IX. 

EDUCATION. 

Section  1.  A  general  diffusion  of  knowledge  and  intelli- 
gence being  essential  to  the  preservation  of  the  rights  and 
liberties  of  the  people,  the  legislature  shall  encourage  by  all 
suitable  means  the  promotion  of  intellectual,  scientific, 
moral  and  agricultural  improvement. 

Sec.  2.  A  superintendent  of  public  instruction  shall,  at 
each  gubernatorial  election  after  the  adoption  of  this  Con- 
stitution, be  elected  by  the  qualified  electors  of  the  state. 
He  shall  receive  a  salary  equal  to  that  of  the  secretary  of 
state,  and  shall  enter  upon  the  duties  of  his  office  on  the  first 
Monday  after  the  first  day  of  January  next  succeeding  his 
election. 

Sec.  3.  A  superintendent  of  schools  for  each  county  shall 
be  elected  by  the  qualified  electors  thereof  at  each  guber- 
natorial election ;  provided,  that  the  legislature  may  au- 
thorize two  or  more  counties  to  unite  and  elect  one  superin- 
tendent for  the  counties  so  uniting. 


47  EDUCATION.  Art.  IX,  §§  4-7 

Sec.  4.  The  proceeds  of  all  lands  that  have  been  or  may 
be  granted  by  the  United  States  to  this  state  for  the  sup- 
port of  common  schools,  which  may  be,  or  may  have  been, 
sold  or  disposed  of,  and  the  five  hundred  thousand  acres 
of  land  granted  to  the  new  states  under  an  act  of  Congress 
distributing  the  proceeds  of  the  public  lands  among  the  sev- 
eral states  of  the  Union,  approved  A.  D.  one  thousand  eight 
hundred  and  forty-one,  and  all  estates  of  deceased  persons 
Avho  may  have  died  without  leaving  a  will  or  heir,  and  also 
such  per  cent  as  may  be  granted,  or  may  have  been  granted, 
by  Congress  on  the  sale  of  lands  in  this  state,  shall  be  and 
remain  a  perpetual  fund,  the  interest  of  which,  together 
with  all  the  rents  of  the  unsold  lands,  and  such  other  means 
as  the  legislature  may  provide,  shall  be  inviolably  appro- 
priated to  the  support  of  common  schools  throughout  the 
state. 

Sec.  5.  The  legislature  shall  provide  for  a  system  of  com- 
mon schools,  by  which  a  free  school  shall  be  kept  up  and 
supported  in  each  district  at  least  six  months  in  every  year, 
after  the  first  year  in  which  a  school  has  been  established. 

Sec.  6.  The  public  school  system  shall  include  day  and 
evening  elementary  schools,  and  such  day  and  evening  sec- 
ondary schools,  normal  schools,  and  technical  schools  as  may 
be  established  by  the  legislature,  or  by  municipal  or  district 
authority.  The  entire  revenue  derived  from  the  state  school 
fund  and  from  the  general  state  school  tax  shall  be  applied 
exclusively  to  the  support  of  day  and  evening  elementary 
schools;  but  the  legislature  may  authorize  and  cause  to  be 
levied  a  special  state  school  tax  for  the  support  of  day  and 
evening  secondary  schools  and  technical  schools,  or  either  of 
such  schools,  included  in  the  public  school  system,  and  all 
revenue  derived  from  such  special  tax  shall  be  applied  ex- 
clusively to  the  support  of  the  schools  for  which  such  special 
tax  shall  be  levied.  [Amendment  adopted  November  3, 
1908.] 

Sec.  7.  The  legislature  shall  provide  for  the  appointment 
or  election  of  a  state  board  of  education,  and  said  board 
shall  provide,  compile,  or  cause  to  be  compiled,  and  adopt. 


_  8,  9  CONSTITUTION  OF  1879.  48 

a  uniform  series  of  text-books  for  use  in  the  day  and  even- 
ing elementary  schools  throughout  the  state.  The  state 
board  may  cause  such  text-books,  when  adopted,  to  be 
printed  and  published  by  the  superintendent  of  state  print- 
ing, at  the  state  printing  office ;  and  wherever  and  however 
such  text-books  may  be  printed  and  published,  they  shall  be 
furnished  and  distributed  by  the  state  free  of  cost  or  any 
cost  or  any  charge  whatever,  to  all  children  attending  the 
day  and  evening  elementary  schools  of  the  state,  under  such 
conditions  as  the  legislature  shall  prescribe.  The  text- 
books, so  adopted,  shall  continue  in  use  not  less  than  four 
years,  without  any  change  or  alteration  whatsoever  which 
will  require  or  necessitate  the  furnishing  of  new  books  to 
such  pupils,  and  said  state  board  shall  perform  such  other 
duties  as  may  be  prescribed  by  law.  The  legislature  shall 
provide  for  a  board  of  education  in  each  county  in  the  state. 
The  county  superintendents  and  the  county  boards  of  edu- 
cation shall  have  control  of  the  examination  of  teachers  and 
the  granting  of  teachers'  certificates  within  their  respective 
jurisdictions.     [Amendment  adopted  November  5,  1912.] 

Sec.  8.  No  public  money  shall  ever  be  appropriated  for 
the  support  of  any  sectarian  or  denominational  school,  or 
any  school  not  under  the  exclusive  control  of  the  officers  of 
the  public  schools;  nor  shall  any  sectarian  or  denomina- 
tional doctrine  be  taught,  or  instruction  thereon  be  per- 
mitted, directly  or  indirectly,  in  any  of  the  common  schools 
of  this  state. 

Sec.  9.  The  University  of  California  shall  constitute  a 
public  trust,  and  its  organization  and  government  shall  be 
perpetually  continued  in  the  form  and  character  prescribed 
by  the  organic  act  creating  the  same,  passed  March  twenty- 
third,  eighteen  hundred  and  sixty-eight  (and  the  several 
acts  amendatory  thereof),  subject  only  to  such  legislative 
control  as  may  be  necessary  to  insure  compliance  with  the 
terms  of  its  endowments  and  the  proper  investment  and  se- 
curity of  its  funds.  It  shall  be  entirely  independent  of  all 
political  or  sectarian  influence,  and  kept  free  therefrom  in 
the  appointment  of  its  regents,  and  in  the  administration  of 


49  EDUCATION.  Art.  IX,  §  10 

its  affairs;  provided,  that  all  the  moneys  derived  from  the 
sale  of  the  public  lands  donated  to  this  state  by  act  of  Con- 
gress, approved  July  second,  eighteen  hundred  and  sixty- 
two  (and  the  several  acts  amendatory  thereof),  shall  be  in- 
vested as  provided  by  said  acts  of  Congress,  and  the  interest 
of  said  moneys  shall  be  inviolably  appropriated  to  the  en- 
dowment, support,  and  maintenance  of  at  least  one  college 
of  agriculture,  where  the  leading  objects  shall  be  (Avithout 
excluding  other  scientific  and  classical  studies,  and  includ- 
ing military  tactics)  to  teach  such  branches  of  learning  as  are 
related  to  scientific  and  practical  agriculture  and  mechanic 
arts  in  accordance  with,  the  requirements  and  conditions  of 
said  acts  of  Congress ;  and  the  legislature  shall  provide  that 
if  through  neglect,  misappropriation,  or  any  other  contin- 
gency, any  portion  of  the  funds  so  set  apart  shall  be  dim- 
inished or  lost,  the  state  shall  replace  such  portion  so  lost 
or  misappropriated,  so  that  the  principal  thereof  shall  re- 
main forever  undiminished.  No  person  shall  be  debarred 
admission  to  any  of  the  collegiate  departments  of  the  uni- 
versity on  account  of  sex. 

Sec.  10.  The  trusts  and  estates  created  for  the  founding, 
endowment,  and  maintenance  of  the  Leland  Stanford  Junior 
University,  under  and  in  accordance  with  "An  act  to  ad- 
vance learning,"  etc.,  approved  March  ninth,  eighteen  hun- 
dred and  eighty-five,  by  the  endowment  grant  executed  by 
Leland  Stanford  and  Jane  Lathrop  Stanford  on  the  eleventh 
day  of  November,  A.  D.  eighteen  hundred  and  eighty-five, 
and  recorded  in  liber  83  of  Deeds,  at  page  23  et  seq.,  records 
of  Santa  Clara  county,  and  by  the  amendments  of  such 
grant,  and  by  gifts,  grants,  bequests,  and  devises  supple- 
mentary thereto,  and  by  confirmatory  grants,  are  permitted, 
approved,  and  confirmed.  The  board  of  trustees  of  the  Le- 
land Stanford  Junior  University,  as  such,  or  in  the  name  of 
the  institution,  or  by  other  intelligible  designation  of  the 
trustees  of  the  institution,  may  receive  property,  real  or 
personal,  and  wherever  situated,  by  gift,  grant,  devise,  or 
bequest,  for  the  benefit  of  the  institution,  or  of  any  depart- 
ment thereof,  and  such  property,  unless  otherwise  provided, 
shall  be  held  by  the  trustees  of  the  Leland  Stanford  Junior 

Constitution — 4 


Art.  IX,  §§  11, 12      CONSTITUTION  OF  1879.  50 

University  upon  the  trusts  provided  for  in  the  grant  found- 
ing the  university,  and  amendments  thereof,  and  grants, 
bequests,  and  devises  supplementary  thereto.  The  legisla- 
ture, by  special  act,  may  grant  to  the  trustees  of  the  Leland 
Stanford  Junior  University  corporate  powers  and  privileges, 
but  it  shall  not  thereby  alter  their  tenure,  or  limit  their 
powers  or  obligations  as  trustees.  All  property  now  or 
hereafter  held  in  trust  for  the  founding,  maintenance,  or 
benefit  of  the  Leland  Stanford  Junior  University,  or  of  any 
department  thereof,  may  be  exempted  by  special  act  from 
state  taxation,  and  all  personal  property  so  held,  the  Palo 
Alto  farm  as  described  in  the  endowment  grant  to  the  trus- 
tees of  the  university,  and  all  other  real  property  so  held 
and  used  by  the  university  for  educational  purposes  exclu- 
sively, may  be  similarly  exempted  from  county  and  munici- 
pal taxation ;  provided,  that  residents  of  California  shall  be 
charged  no  fees  for  tuition  unless  such  fees  be  authorized 
by  act  of  the  legislature.  [New  section  adopted  November 
6,  1900.] 

Sec.  11.  All  property  now  or  hereafter  belonging  to  "The 
California  School  of  Mechanical  Arts,"  an  institution 
founded  and  endowed  by  the  late  James  Lick  to  educate 
males  and  females  in  the  practical  arts  of  life,  and  incor- 
porated under  the  laws  of  the  state  of  California,  Novem- 
ber twenty-third,  eighteen  hundred  and  eighty-five,  having 
its  school  buildings  located  in  the  city  and  county  of  San 
Francisco,  shall  be  exempt  from  taxation.  The  trustees  of 
said  institution  must  annually  report  their  proceedings  and 
financial  accounts  to  the  governor.  The  legislature  may 
modify,  suspend,  and  revive  at  Avill  the  exemption  from 
taxation  herein  given.  [New  section  adopted  November  6, 
1900.] 

Sec.  12.  All  property  now  or  hereafter  belonging  to  the 
"California  Academy  of  Sciences,"  an  institution  for  the  ad- 
vancement of  science  and  maintenance  of  a  free  museum, 
and  chiefly  endowed  by  the  late  James  Lick,  and  incor- 
porated under  the  laws  of  the  state  of  California,  January 
sixteenth,  eighteen  hundred  and  seventy-one,  having  its 
buildings  located  in  the  city  and  county  of  San  Francisco, 


51  STATE   INSTITUTIONS.  Art.  X,  §§  1,  2 

shall  be  exempt  from  taxation.  The  trustees  of  said  insti- 
tution must  annually  report  their  proceedings  and  financial 
accounts  to  the  governor.  The  legislature  may  modify,  sus- 
pend, and  revive  at  will  the  exemption  from  taxation  herein 
given.     [New  section  adopted  November  8,  1904.] 

Sec.  13.  All  property  now  or  hereafter  belonging  to  the 
Cogswell  Polytechnical  College,  an  institution  for  the  ad- 
vancement of  learning,  incorporated  under  the  laws  of  the 
state  of  California,  and  having  its  buildings  located  in  the 
city  and  county  of  San  Francisco,  shall  be  exempt  from 
taxation.  The  trustees  of  said  institution  must  annually  re- 
port their  proceedings  and  financial  accounts  to  the  gover- 
nor. The  legislature  may  modify,  suspend,  and  revive  at 
will  the  exemption  from  taxation  herein  given.  [New  sec- 
tion adopted  November  6,  1906.] 

ARTICLE  X. 

STATE  INSTITUTIONS    AND   PUBLIC  BUILDINGS. 

Section  1.  There  shall  be  a  state  board  of  prison  direc- 
tors, to  consist  of  five  persons,  to  be  appointed  by  the  gov- 
ernor, with  the  advice  and  consent  of  the  senate,  who  shall 
liold  office  for  ten  years,  except  that  the  first  appointed 
shall,  in  such  manner  as  the  legislature  may  direct,  be  so 
classified  that  the  term  of  one  person  so  appointed  shall  ex- 
pire at  the  end  of  each  two  years  during  the  first  ten  years. 
and  vacancies  occurring  shall  be  filled  in  like  manner.  The 
appointee  to  vacancy  occurring  before  the  expiration  of  a 
term  shall  hold  office  only  for  the  unexpired  term  of  his 
predecessor.  The  governor  shall  have  the  power  to  remove 
either  of  the  directors  for  misconduct,  incompetency,  or 
neglect  of  duty,  after  an  opportunity  to  be  heard  upon  writ- 
ten charges. 

Sec.  2.  The  board  of  directors  shall  have  the  charge  and 
superintendence  of  the  state  prisons,  and  shall  possess  such 
powers  and  perform  such  duties,  in  respect  to  other  penal 
and  reformatory  institutions  of  this  state,  as  the  legislature 
may  prescribe. 


Art.  XI,  §§  1-3  CONSTITUTION  OF  1879.  52 

Sec.  3.  The  board  shall  appoint  the  warden  and  clerk, 
and  determine  the  other  necessary  officers  of  the  prisons. 
The  board  shall  have  power  to  remove  the  wardens  and 
clerks  for  misconduct,  incompetency,  or  neglect  of  duty. 
All  other  officers  and  employees  of  the  prisons  shall  be  ap- 
pointed by  the  Avarden  thereof,  and  be  removed  at  his 
pleasure. 

Sec.  4.  The  members  of  the  board  shall  receive  no  com- 
pensation, other  than  reasonable  traveling  and  other  ex- 
penses incurred  while  engaged  in  the  performance  of  official 
duties,  to  be  audited  as  the  legislature  may  direct. 

Sec.  5.  The  legislature  shall  pass  such  laws  as  may  be 
necessary  to  further  define  and  regulate  the  powers  and 
duties  of  the  board,  wardens,  and  clerks,  and  to  carry  into 
effect  the  provisions  of  this  article. 

Sec.  6.  After  the  first  day  of  January,  eighteen  hundred 
and  eighty-two,  the  labor  of  convicts  shall  not  be  let  out 
by  contract  to  any  person,  copartnership,  company,  or  cor- 
poration, and  the  legislature  shall,  by  law,  provide  for  the 
working  of  convicts  for  the  benefit  of  the  state. 

ARTICLE  XI. 
COUNTIES,  CITIES,  AND  TOWNS. 

Section  1.  The  several  counties,  as  they  now  exist,  are 
hereby  recognized  as  legal  subdivisions  of  this  state. 

Sec.  2.  No  county  seat  shall  be  removed  unless  two-thirds 
of  the  qualified  electors  of  the  county,  voting  on  the  propo- 
sition at  a  general  election,  shall  vote  in  favor  of  such  re- 
moval. A  proposition  of  removal  shall  not  be  submitted  in 
the  same  county  more  than  once  in  four  years. 

Sec.  3.  The  legislature,  by  general  and  uniform  laAvs, 
may  provide  for  the  alteration  of  county  boundary  lines, 
and  for  the  formation  of  new  counties ;  provided,  however, 
that  no  new  county  shall  be  established  which  shall  reduce 
any  county  to  a  population  of  less  than  twenty  thousand; 
nor  shall  a  new  county  be  formed  containing  a  less  popula- 


53  COUNTIES,  CITIES  AND  TOWNS.      Art.  XI,  §§  4,  5 

tion  than  eight  thousand;  nor  shall  any  line  thereof  pass 
Avithin  five  miles  of  the  exterior  boundary  of  the  city  or 
town  in  which  the  county  seat  of  any  county  proposed  to  be 
divided  is  situated.  Every  county  which  shall  be  enlarged 
or  created  from  territory  taken  from  any  other  county  or 
counties,  shall  be  liable  for  a  just  proportion  of  the  existing 
debts  and  liabilities  of  the  county  or  counties  from  which 
such  territory  shall  be  taken.  [Amendment  adopted  No- 
vember 8,  1910.] 

Sec.  4.  The  legislature  shall  establish  a  system  of  county 
governments,  which  shall  be  uniform  throughout  the  state; 
and  by  general  laws  shall  provide  for  township  organiza- 
tions, under  which  any  county  may  organize  whenever  a 
majority  of  the  qualified  electors  of  such  county,  voting  at  a 
general  election,  shall  so  determine ;  and  whenever  a  county 
shall  adopt  township  organization,  the  assessment  and  col- 
lection of  the  revenue  shall  be  made,  and  the  business  of 
such  county  and  the  local  affairs  of  the  several  townships 
therein  shall  be  managed  and  transacted,  in  the  manner 
prescribed  by  such  general  laws. 

Sec.  5.  The  legislature,  by  general  and  uniform  laws, 
shall  provide  for  the  election  or  appointment,  in  the  several 
counties,  of  boards  of  supervisors,  sheriffs,  county  clerks, 
district  attorneys,  and  such  other  county,  township,  and 
municipal  officers  as  public  convenience  may  require,  and 
shall  prescribe  their  duties  and  fix  their  terms  of  office.  It 
shall  regulate  the  compensation  of  all  such  officers,  in  pro- 
portion to  duties,  and  may  also  establish  fees  to  be  charged 
and  collected  by  such  officers  for  services  performed  in  their 
respective  offices,  in  the  manner  and  for  the  uses  provided 
by  law,  and  for  this  purpose  may  classify  the  counties  by 
population ;  and  it  shall  provide  for  the  strict  accountabil- 
ity of  county  and  township  officers  for  all  fees  which  may  be 
collected  by  them,  and  for  all  public  and  municipal  moneys 
which  may  be  paid  to  them,  or  officially  come  into  their  pos- 
session. It  may  regulate  the  compensation  of  grand  and 
trial  jurors  in  all  courts  within  the  classes  of  counties  herein 
permitted  to  be  made;  such  compensation,  however,  shall 


Art.  XI,  §§  6,  7  CONSTITUTION  OF  1879.  54 

not,  in  any  class,  exceed  the  sum  of  three  dollars  per  day 
and  mileage.     [Amendment  adopted  November  3,  1908.] 

Sec.  6.  Corporations  for  municipal  purposes  shall  not  be 
created  by  special  laws;  but  the  legislature  shall,  by  gen- 
eral laws,  provide  for  the  incorporation,  organization,  and 
classification,  in  proportion  to  population,  of  cities  and 
towns,  which  laws  may  be  altered,  amended,  or  repealed ; 
and  the  legislature  may,  by  general  laws,  provide  for  the 
performance  by  county  officers  of  certain  of  the  municipal 
functions  of  cities  and  towns  so  incorporated,  whenever  a 
majority  of  the  electors  of  any  such  city  or  town  votingat 
a  general  or  special  election  shall  so  determine.  Cities  and 
towns  heretofore  organized  or  incorporated  may  become  or- 
ganized under  the  general  laws  passed  for  that  purpose, 
Avhenever  a  majority  of  the  electors  voting  at  a  general  elec- 
tion shall  so  determine,  and  shall  organize  in  conformity 
therewith.  Cities  and  towns  hereafter  organized  under 
charters  framed  and  adopted  by  authority  of  this  Constitu- 
tion are  hereby  empowered,  and  cities  and  towns  heretofore 
organized  by  authority  of  this  Constitution  may  amend  their 
charters  in  the  manner  authorized  by  this  Constitution  so  as 
to  become  likewise  empowered  hereunder,  to  make  and 
enforce  all  laws  and  regulations  in  respect  to  municipal  af- 
fairs, subject  only  to  the  restrictions  and  limitations  pro- 
vided in  their  several  charters,  and  in  respect  to  other  mat- 
ters they  shall  be  subject  to  and  controlled  by  general  laws. 
Cities  and  towns  heretofore  or  hereafter  organized  by  au- 
thority of  this  Constitution  may,  by  charter  provision  or 
amendment,  provide  for  the  performance  by  county  officers 
of  certain  of  their  municipal  functions,  whenever  the  dis- 
charge of  such  municipal  functions  by  county  officers  is  au- 
thorized by  general  laws  or  by  the  provisions  of  a  county 
charter  framed  and  adopted  by  authority  of  this  Constitu- 
tion.    [Amendment  adopted  November  3,  1914.] 

Sec.  7.  City  and  county  governments  may  be  merged  and 
consolidated  into  one  municipal  government,  with  one  set  of 
officers,  and  may  be  incorporated  under  general  laws  pro- 
viding for  the  incorporation  and  organization  of  corpora- 


55  COUNTIES,  CITIES  AND   TOWNS.      Art.  XI,  §  7^/^ 

tions  for  municipal  purposes.  The  provisions  of  this  Con- 
stitution applicable  to  cities,  and  also  those  applicable  to 
counties,  so  far  as  not  inconsistent  or  prohibited  to  cities, 
shall  be  applicable  to  such  consolidated  government. 
[Amendment  adopted  November  6,  1894.] 

Sec.  71/2-  ^iiy  county  may  frame  a  charter  for  its  own 
government  consistent  with  and  subject  to  the  Constitution 
(or,  having  framed  such  a  charter,  may  frame  a  new  one), 
and  relating  to  matters  authorized  by  provisions  of  the  Con- 
stitution, by  causing  a  board  of  fifteen  freeholders,  who 
have  been  for  at  least  five  years  qualified  electors  thereof, 
to  be  elected  by  the  qualified  electors  of  said  county,  at  a 
general  or  special  election.  Said  board  of  freeholders  may 
be  so  elected  in  pursuance  of  an  ordinance  adopted  by  the 
vote  of  three-fifths  of  all  the  members  of  the  board  of  super- 
visors of  such  county,  declaring  that  the  public  interest  re- 
quires the  election  of  such  board  for  the  purpose  of  prepar- 
ing and  proposing  a  charter  for  said  county,  or  in  pursuance 
of  a  petition  of  qualified  electors  of  said  county  as  herein- 
after provided.  Such  petition,  signed  by  fifteen  per  centum 
of  the  qualified  electors  of  said  county,  computed  upon  the 
total  number  of  votes  cast  therein  for  all  candidates  for 
governor  at  the  last  preceding  general  election  at  which  a 
governor  was  elected,  praying  for  the  election  of  a  board 
of  fifteen  freeholders  to  prepare  and  propose  a  charter  for 
said  county,  may  be  filed  in  the  office  of  the  county  clerk. 
It  shall  be  the  duty  of  said  county  clerk,  within  twenty  days 
after  the  filing  of  said  petition,  to  examine  the  same,  and  to 
ascertain  from  the  record  of  the  registration  of  electors  of 
the  county,  whether  said  petition  is  signed  by  the  requisite 
number  of  qualified  electors.  If  required  by  said  clerk,  the 
board  of  supervisors  shall  authorize  him  to  employ  persons 
specially  to  assist  him  in  the  work  of  examining  such  peti- 
tion, and  shall  provide  for  their  compensation.  Upon  the 
completion  of  such  examination,  said  clerk  shall  forthwith 
attach  to  said  petition  his  certificate,  properly  dated,  show- 
ing the  result  thereof,  and  if,  by  said  certificate,  it  shall  ap- 
pear that  said  petition  is  signed  by  the  requisite  number  of 
qualified  electors,  said  clerk  shall  immediately  present  said 


Art.  XI,  §  7I/2  CONSTITUTION  OF  1879.  56 

petition  to  the  board  of  supervisors,  if  it  be  in  session,  other- 
wise at  its  ne?;t  regular  meeting  after  the  date  of  such  cer- 
tificate. Upon  the  adoption  of  such  ordinance,  or  the  pres- 
entation of  such  petition,  said  board  of  supervisors  shall 
order  the  holding  of  a  special  election  for  the  purpose  of 
electing  such  board  of  freeholders,  which  said  special  elec- 
tion shall  be  held  not  less  than  twenty  days  nor  more  than 
sixty  days  after  the  adoption  of  the  ordinance  aforesaid  or 
the  presentation  of  said  petition  to  said  board  of  super- 
visors ;  provided,  that  if  a  general  election  shall  occur  in 
said  county  not  less  than  twenty  days  nor  more  than  sixty 
days  after  the  adoption  of  the  ordinance  aforesaid,  or  such 
presentation  of  said  petition  to  said  board  of  supervisors, 
said  board  of  freeholders  may  be  elected  at  such  gen- 
eral election.  Candidates  for  election  as  members  of  said 
board  of  freeholders  shall  be  nominated  by  petition,  sub- 
stantially in  the  same  manner  as  may  be  provided  by  gen- 
eral law  for  the  nomination,  by  petition  of  electors,  of 
candidates  for  county  offices,  to  be  voted  for  at  general 
elections.  It  shall  be  the  duty  of  said  board  of  freeholders, 
within  one  hundred  and  twenty  days  after  the  result  of  such 
election  shall  have  been  declared  by  said  board  of  super- 
visors, to  prepare  and  propose  a  charter  for  said  county, 
which  shall  be  signed  in  duplicate  by  the  members  of  said 
board  of  freeholders,  or  a  majority  of  them,  and  be  filed, 
one  copy  in  the  office  of  the  county  clerk  of  said  county  and 
the  other  in  the  office  of  the  county  recorder  thereof.  Said 
board  of  supervisors  shall  thereupon  cause  said  proposed 
charter  to  be  published  for  at  least  ten  times  in  a  daily 
ncAvspaper  of  general  circulation,  printed,  published  and 
circulated  in  said  county;  provided,  that  in  any  county 
where  no  such  daily  newspaper  is  printed,  published  and 
circulated,  such  proposed  charter  shall  be  published  for  at 
least  three  times  in  at  least  one  Aveekly  newspaper,  of 
general  circulation,  printed,  published  and  circulated  in 
such  county ;  and  provided,  that  in  any  county  where 
neither  such  daily  nor  such  weekly  newspaper  is  printed, 
published  and  circulated,  a  copy  of  such  proposed  charter 
shall  be  posted  by  the  county  clerk  in  three  public  places  in 


57  COUNTIES,  CITIES  AND  TOWNS.      Art.  XI,  §  7^^ 

said  county,  and  on  or  near  the  entrance  to  at  least  one  pub- 
lic schoolhouse  in  each  school  district  in  said  county,  and 
the  first  publication  or  the  posting  of  such  proposed  charter 
shall  be  made  within  fifteen  days  after  the  filing  of  a  copy 
thereof,  as  aforesaid,  in  the  office  of  the  county  clerk.  Said 
proposed  charter  shall  be  submitted  by  said  board  of  super- 
visors to  the  qualified  electors  of  said  county  at  a  special 
election  held  not  less  than  thirty  days  nor  more  than  sixty 
days  after  the  completion  of  such  publication,  or  after  such 
posting;  provided,  that  if  a  general  election  shall  occur  in 
said  county,  not  less  than  thirty  days  nor  more  than  sixty 
days  after  the  completion  of  such  publication,  or  after  such 
posting,  then  such  proposed  charter  may  be  so  submitted  at 
such  general  election.  If  a  majority  of  said  qualified  elec- 
tors, voting  thereon  at  such  general  or  special  election,  shall 
vote  in  favor  of  such  proposed  charter  it  shall  be  deemed  to 
be  ratified,  and  shall  be  forthwith  submitted  to  the  legisla- 
ture, if  it  be  in  regular  session,  otherwise  at  its  next  regular 
session,  or  it  may  be  submitted  to  the  legislature  in  extraor- 
dinary session,  for  its  approval  or  rejection  as  a  whole, 
without  power  of  alteration  or  amendment.  Such  approval 
may  be  made  by  concurrent  resolution,  and  if  approved  by 
a  majority  vote  of  the  members  elected  to  each  house,  such 
charter  shall  become  the  charter  of  such  county  and  shall 
become  the  organic  law  thereof  relative  to  the  matters 
therein  provided,  and  supersede  any  existing  charter  framed 
under  the  provisions  of  this  section,  and  all  amendments 
thereof,  and  shall  supersede  all  laws  inconsistent  with  such 
charter  relative  to  the  matters  provided  in  such  charter.  A 
copy  of  such  charter,  certified  and  authenticated  by  the 
chairman  and  clerk  of  the  board  of  supervisors  under  the 
seal  of  said  board  and  attested  by  the  county  clerk  of  said 
county,  setting  forth  the  submission  of  such  charter  to  the 
electors  of  said  county,  and  its  ratification  by  them,  shall, 
after  the  approval  of  such  charter  by  the  legislature,  be 
made  in  duplicate,  and  filed,  one  in  the  office  of  the  secre- 
tary of  state  and  the  other,  after  being  recorded  in  the  office 
of  the  recorder  of  said  county,  shall  be  filed  in  the  office  of 
the  county  clerk  thereof,  and  thereafter  all  courts  shall  take 
judicial  notice  of  said  charter. 


Art.  XI,  §  71/4  CONSTITUTION  OF  1879.  58 

The  charter,  so  ratified,  may  be  amended  by  proposals 
therefor  submitted  by  the  board  of  supervisors  of  the  county 
to  the  qualified  electors  thereof  at  a  general  or  special  elec- 
tion held  not  less  than  thirty  days  nor  more  than  sixty  days 
after  the  publication  of  such  proposals  for  ten  times  in  a 
daily  ncAvspaper  of  general  circulation,  printed,  published 
and  circulated  in  said  county ;  provided,  that  in  any  county 
where  no  such  daily  newspaper  is  printed,  published  and 
circulated,  such  proposed  charter  shall  be  published  for  at 
least  three  times  in  at  least  one  Aveekly  newspaper,  of 
general  circulation,  printed,  published,  and  circulated  in 
such  county;  provided,  that  in  any  county  where  neither 
such  daily  nor  such  weekly  newspaper  is  printed,  published 
and  circulated,  a  copy  of  such  proposed  charter  shall  be 
posted  by  the  county  clerk  in  three  public  places  in  said 
county,  and  on  or  near  the  entrance  to  at  least  one  public 
schoolhouse  in  each  school  district  in  said  county.  If  a  ma- 
jority of  such  qualified  electors  voting  thereon,  at  such  gen- 
eral or  special  election,  shall  vote  in  favor  of  any  such  pro- 
posed amendment  or  amendments,  or  any  amendment  or 
amendments  proposed  by  petition  as  hereinafter  provided, 
such  amendment  or  amendments  shall  be  deemed  to  be  rati- 
fied, and  shall  be  forthwith  submitted  to  the  legislature,  if 
it  be  in  regular  session,  otherAvise  at  its  next  regular  ses- 
sion, or  may  be  submitted  to  the  legislature  in  extraordi- 
nary session,  for  approval  or  rejection  as  a  whole,  without 
power  of  alteration  or  amendment,  and  if  approved  by  the 
legislature,  as  herein  provided  for  the  approval  of  the  char- 
ter, such  charter  shall  be  amended  accordingly,  A  copy  of 
such  amendment  or  amendments  shall,  after  the  approval 
thereof  by  the  legislature,  be  made  in  duplicate,  and  shall 
be  authenticated,  certified,  recorded  and  filed  as  herein  pro- 
vided for  the  charter,  and  with  like  force  and  effect.  When- 
ever a  petition  signed  by  ten  per  centum  of  the  qualified 
electors  of  any  county,  computed  upon  the  total  number  of 
votes  cast  in  said  county  for  all  candidates  for  governor  at 
the  last  general  election,  at  which  a  governor  was  elected, 
is  filed  in  the  office  of  the  county  clerk  of  said  county,  peti- 
tioning the  board  of  supervisors  thereof  to  submit  any  pro- 


59  COUNTIES,  CITIES  AND   TOWNS.       Art.  XI,  §  7  lo 

posed  amendment  or  amendments  to  the  charter  of  such 
county,  which  amendment  or  amendments  shall  be  set  forth 
in  full  in  such  petition,  to  the  qualified  electors  thereof,  such 
petition  shall  forthwith  be  examined  and  certified  by  the 
county  clerk,  and  if  signed  by  the  requisite  number  of 
qualified  electors  of  such  county,  shall  be  presented  to 
the  said  board  of  supervisors,  by  the  said  county  clerk, 
as  hereinbefore  provided  for  petitions  for  the  election  of 
boards  of  freeholders.  Upon  the  presentation  of  said  peti- 
tion to  said  board  of  supervisors,  said  board  must  sub- 
mit the  amendment  or  amendments  set  forth  therein  to 
the  qualified  electors  of  said  county,  at  a  general  or  spe- 
cial election  held  not  less  than  thirty  days  nor  more  than 
sixty  days  after  the  publication  or  posting  of  such  pro- 
posed amendment  or  amendments  in  the  same  manner  as 
hereinbefore  provided  in  the  case  of  the  submission  of  any 
proposed  amendment  or  amendments  to  such  charter,  pro- 
posed and  submitted  by  the  board  of  supervisors.  In  sub- 
mitting any  such  charter,  or  amendments  thereto,  any  alter- 
native article  or  proposition  may  be  presented  for  the  choice 
of  the  electors,  and  may  be  voted  on  separately  without 
prejudice  to  others. 

Every  special  election  held  under  the  provisions  of  this 
section,  for  the  election  of  boards  of  freeholders  or  for  the 
submission  of  proposed  charters,  or  any  amendment  or 
amendments  thereto,  shall  be  called  by  the  board  of  super- 
visors, by  ordinance,  which  shall  specify  the  purpose  and 
time  of  such  election  and  shall  establish  the  election  pre- 
cincts and  designate  the  polling  places  therein,  and  the 
names  of  the  election  officers  for  each  such  precinct.  Such 
ordinance,  prior  to  such  election,  shall  be  published  five 
times  in  a  daily  newspaper,  or  twice  in  a  weekly  newspaper, 
if  there  be  no  such  daily  newspaper,  printed,  published  and 
circulated  in  said  county ;  provided,  that  if  no  such  daily  or 
weekly  newspaper  be  printed  or  published  in  such  county, 
then  a  copy  of  such  ordinance  shall  be  posted  by  the  county 
clerk  in  three  public  places  in  such  county  and  in  or  near 
the  entrance  to  at  least  one  public  schoolhouse  in  each 
school  district  therein.     In  all  other  respects,   every  such 


Art.  XI,  §  7l^  CONSTITUTION  OP  1879.  60 

election  shall  be  held  and  conducted,  the  returns  thereof 
canvassed  and  the  result  thereof  declared  by  the  board  of 
supervisors  in  the  same  manner  as  provided  by  law  for  gen- 
eral elections.  Whenever  boards  of  freeholders  shall  be 
elected,  or  any  such  proposed  charter,  or  amendment  or 
amendments  thereto,  submitted,  at  a  general  election,  the 
general  laws  applicable  to  the  election  of  county  officers  and 
the  submission  of  propositions  to  the  vote  of  electors,  shall 
be  followed  in  so  far  as  the  same  may  be  applicable  thereto. 
It  shall  be  competent,  in  all  charters,  framed  under  the 
authority  given  by  this  section  to  provide,  in  addition  to  any 
other  provisions  alloAvable  by  this  Constitution,  and  the 
same  shall  provide,  for  the  following  matters: 

1.  For  boards  of  supervisors  and  for  the  Constitution, 
regulation  and  government  thereof,  for  the  times  at  which 
and  the  terms  for  which  the  members  of  said  board  shall  be 
elected,  for  the  number  of  members,  not  less  than  three,  that 
shall  constitute  such  boards,  for  their  compensation  and  for 
their  election,  either  by  the  electors  of  the  counties  at  large 
or  by  districts ;  provided,  that  in  any  event  said  board  shall 
consist  of  one  member  for  each  district,  who  must  be  a  quali- 
fied elector  thereof;  and 

2.  For  sheriffs,  county  clerks,  treasurers,  recorders,  li- 
cense collectors,  tax  collectors,  public  administrators,  coro- 
ners, surveyors,  district  attorneys,  auditors,  assessors  and 
superintendents  of  schools,  for  the  election  or  appointment 
of  said  officers,  or  any  of  them,  for  the  times  at  which  and 
the  terms  for  which,  said  officers  shall  be  elected  or  ap- 
pointed, and  for  their  compensation,  or  for  the  fixing  of 
such  compensation  by  boards  of  supervisors,  and,  if  ap- 
pointed, for  the  manner  of  their  appointment ;  and 

3.  For  the  number  of  justices  of  the  peace  and  constables 
for  each  township,  or  for  the  number  of  such  judges  and 
other  officers  of  such  inferior  courts  as  may  be  provided  by 
the  Constitution  or  general  law,  for  the  election  or  appoint- 
ment of  said  officers,  for  the  times  at  which  and  the  terms 
for  which  said  officers  shall  be  elected  or  appointed,  and  for 
their  compensation,  or  for  the  fixing  of  such  compensation 


61  COUNTIES,  CITIES  AND  TOWNS.      Art.  XI,  §  T^/iJ 

by  boards  of  supervisors,  and  if  appointed,  for  the  manner 
of  their  appointment ;  and 

4.  For  the  powers  and  duties  of  boards  of  supervisors  and 
all  other  county  officers,  for  their  removal  and  for  the  con- 
solidation and  segregation  of  county  offices,  and  for  the 
manner  of  filling  all  vacancies  occurring  therein;  provided, 
that  the  provisions  of  such  charters  relating  to  the  powers 
and  duties  of  boards  of  supervisors  and  all  other  county 
officers  shall  be  subject  to  and  controlled  by  general  laws; 
and 

41/4,  For  the  assumption  and  discharge  by  county  officers 
of  certain  of  the  municipal  functions  of  the  cities  and  towns 
within  the  county,  whenever,  in  the  case  of  cities  and  towns 
incorporated  under  general  laws,  the  discharge  by  county 
officers  of  such  municipal  functions  is  authorized  by  general 
law,  or  whenever,  in  the  case  of  cities  and  towns  organized 
under  section  eight  of  this  article,  the  discharge  by  county 
officers  of  such  municipal  functions  is  authorized  by  provi- 
sions of  the  charters,  or  by  amendments  thereto,  of  such 
cities  or  towns. 

5.  For  the  fixing  and  regulation  by  boards  of  supervisors, 
by  ordinance,  of  the  appointment  and  number  of  assistants, 
deputies,  clerks,  attaches  and  other  persons  to  be  employed, 
from  time  to  time,  in  the  several  offices  of  the  county,  and 
for  the  prescribing  and  regulating  by  such  boards  of  the 
powers,  duties,  qualifications  and  compensation  of  such  per- 
sons, the  times  at  which,  and  terms  for  which  they  shall  be 
appointed,  and  the  manner  of  their  appointment  and  re- 
moval ;  and 

6.  For  the  compensation  of  such  fish  and  game  wardens, 
probation  and  other  officers  as  may  be  provided  by  general 
law,  or  for  the  fixing  of  such  compensation  by  boards  of 
supervisors. 

All  elective  officers  of  counties,  and  of  townships,  of  road 
districts  and  of  highway  construction  divisions  therein  shall 
be  nominated  and  elected  in  the  manner  provided  by  gen- 
eral laAvs  for  the  nomination  and  election  of  such  officers. 

All  charters  framed  under  the  authority  given  by  this  sec- 
tion, in  addition  to  the  matters  herein  above  specified,  may 
provide  as  follows : 


Art.  XI,  §  7l^  CONSTITUTION  OF  1879.  62 

For  officers  other  than  those  required  by  the  Constitution 
and  laws  of  the  state,  or  for  the  creation  of  any  or  all  of 
such  offices  by  boards  of  supervisors,  for  the  election  or  ap- 
pointment of  persons  to  fill  such  offices  for  the  manner  of 
such  appointment,  for  the  times  at  which  and  the  terms  for 
which  such  persons  shall  be  so  elected  or  appointed,  and 
for  their  compensation,  or  for  the  fixing  of  such  compensa- 
tion by  boards  of  supervisors. 

For  offices  hereafter  created  by  this  Constitution  or  by 
general  law,  for  the  election  or  appointment  of  persons  to 
fill  such  offices,  for  the  manner  of  such  appointment,  for  the 
times  at  which  and  the  terms  for  which  such  persons  shall 
be  so  elected  or  appointed,  and  for  their  compensation,  or 
for  the  fixing  of  such  compensation  by  boards  of  super- 
visors. 

For  the  formation,  in  such  counties,  of  road  districts  for 
the  care,  maintenance,  repair,  inspection  and  supervision 
only  of  roads,  highways  and  bridges ;  and  for  the  formation, 
in  such  counties,  of  highAvay  construction  divisions  for  the 
construction  only  of  roads,  highways  and  bridges ;  for  the 
inclusion  in  any  such  district  or  division,  of  the  whole  or 
any  part  of  any  incorporated  city  or  town,  upon  ordinance 
passed  by  such  incorporated  city  or  town  authorizing  the 
same,  and  upon  the  assent  to  such  inclusion  by  a  majority 
of  the  qualified  electors  of  such  incorporated  city  or  town, 
or  portion  thereof,  proposed  to  be  so  included,  at  an  elec- 
tion held  for  that  purpose ;  for  the  organization,  govern- 
ment, powers  and  jurisdiction  of  such  districts  and  divi- 
sions, and  for  raising  revenue  therein,  for  such  purposes, 
by  taxation,  upon  the  assent  of  a  majority  of  the  qualified 
electors  of  such  districts  or  divisions,  voting  at  an  election 
to  be  held  for  that  purpose ;  for  the  incurring  of  indebted- 
ness therefor  by  such  counties,  districts  or  divisions  for  such 
purposes  respectively,  by  the  issuance  and  sale,  by  the  coun- 
ties, of  bonds  of  such  counties,  districts  or  divisions,  and 
the  expenditure  of  the  proceeds  of  the  sale  of  such  bonds, 
and  for  levying  and  collecting  taxes  against  the  property 
of  the  counties,  districts  or  divisions,  as  the  case  may  be, 
for  the  payment  of  the  principal  and  interest  of  such  in- 


63  COUNTIES,  CITIES  AND  TOWNS.      Art.  XI,  §  71/2 

debtedness  at  maturity ;  provided,  that  any  such  indebted- 
ness shall  not  be  incurred  without  the  assent  of  two-thirds 
of  the  qualifi(xl  electors  of  the  county,  district  or  division, 
as  the  case  may  be,  voting  at  an  election  to  be  held  for  that 
purpose,  nor  unless  before  or  at  the  time  of  incurring  such 
indebtedness  provision  shall  be  made  for  the  collection  of 
an  annual  tax  sufficient  to  pay  the  interest  on  such  indebt- 
edness as  it  falls  due,  and  also  for  a  sinking  fund  for  the 
payment  of  the  principal  thereof  on  or  before  maturity, 
which  shall  not  exceed  forty  years  from  the  time  of  con- 
tracting the  same,  and  the  procedure  for  voting,  issuing 
and  selling  such  bonds  shall,  except  in  so  far  as  the  same 
shall  be  prescribed  in  such  charters,  conform  to  general 
laws  for  the  authorizing  and  incurring  by  counties  of 
bonded  indebtedness,  so  far  as  applicable ;  provided,  fur- 
ther, that  provisions  in  such  charters  for  the  construction, 
care,  maintenance,  repair,  inspection  and  supervision  of 
roads,  highways  and  bridges  for  w^hich  aid  from  the  state 
is  granted,  shall  be  subject  to  such  regulations  and  condi- 
tions as  may  be  imposed  by  the  legislature. 

Whenever  any  county  has  framed  and  adopted  a  charter, 
and  the  same  shall  have  been  approved  by  the  legislature, 
as  herein  provided,  the  general  laws  adopted  by  the  legis- 
lature in  pursuance  of  sections  4  and  5  of  this  article,  shall, 
as  to  such  county,  be  superseded  by  said  charter  as  to  mat- 
ters for  which,  under  this  section  it  is  competent  to  make 
provision  in  such  charter,  and  for  which  provision  is  made 
therein,  except  as  herein  otherwise  expressly  provided ;  and 
except  tiiat  any  such  charter  shall  not  affect  the  tenure  of 
office  of  the  elective  officers  of  the  county,  or  of  any  district, 
township  or  division  thereof,  in  office  at  the  time  such  char- 
ter goes  into  effect,  and  such  officers  shall  continue  to  hold 
their  respective  offices  until  the  expiration  of  the  term  for 
which  they  shall  have  been  elected,  unless  sooner  removed 
in  the  manner  provided  by  laAv. 

The  charter  of  any  county,  adopted  under  the  authority 
of  this  section,  may  be  surrendered  and  annulled  with  the 
assent  of  two-thirds  of  the  qualified  electors  of  such  county, 
voting  at  a  special  election,  held  for  that  purpose,  and  to 


Art.  XI,  §  8  CONSTITUTION  OF  1879.  6i 

be  ordered  and  called  by  the  board  of  supervisors  of  the 
county  upon  receiving  a  Avritten  petition,  signed  and  certi- 
fied as  hereinabove  provided  for  the  purposes  of  the  adop- 
tion of  charters,  requesting  said  board  to  submit  the  ques- 
tion of  the  surrender  and  annulment  of  such  charter  to  the 
qualified  electors  of  such  county,  and,  in  the  event  of  the 
surrender  and  annulment  of  any  such  charter,  such  county 
shall  thereafter  be  governed  under  general  laws  in  force 
for  the  government  of  counties. 

The  provisions  of  this  section  shall  not  be  applicable  to 
any  county  that  is  consolidated  with  any  city.  [Amend- 
ment adopted  November  3,  1914.] 

Sec.  8.  Any  city  or  city  and  county  containing  a  popu^ 
lation  of  more  than  three  thousand  five  hundred  inhabi- 
tants, as  ascertained  by  the  last  preceding  census  taken 
under  the  authority  of  the  Congress  of  the  United  States  or 
of  the  legislature  of  California,  may  frame  a  charter  for  its 
own  government,  consistent  with  and  subject  to  this  Con- 
stitution; and  any  city,  or  city  and  county  having  adopted 
a  charter  may  adopt  a  new  one.  Any  such  charter  shall  be 
framed  by  a  board  of  fifteen  freeholders  chosen  by  the  elec- 
tors of  such  city  at  any  general  or  special  election,  but  no 
person  shall  be  eligible  as  a  candidate  for  such  board  unless 
he  shall  have  been,  for  the  five  years  next  preceding,  an 
elector  of  said  city.  An  election  for  choosing  freeholders 
may  be  called  by  a  two-thirds  vote  of  the  legislative  body 
of  such  city,  and,  on  presentation  of  a  petition  signed  by 
not  less  than  fifteen  per  cent  of  the  registered  electors  of 
such  city,  the  legislative  body  shall  call  such  election  at  any 
time  not  less  than  thirty  nor  more  than  sixty  days  from 
date  of  the  filing  of  the  petition.  Any  such  petition  shall 
be  verified  by  the  authority  having  charge  of  the  registra- 
tion records  of  such  city  or  city  and  county  and  the 
expenses  of  such  verification,  shall  be  provided  by  the  legis- 
lative body  thereof.  Candidates  for  the  office  of  freehold- 
ers shall  be  nominated  either  in  such  manner  as  may  be 
provided  for  the  nomination  of  officers  of  the  municipal  gov- 
ernment or  by  petition,  substantially  in  the  same  manner 
as  may  be  provided  by  general  laws  for  the  nomination  by 


65  COUNTIES,    CITIES    AND    TOWNS.      Art.  XI,  §  8 

petition  of  electors  of  candidates  for  public  offices  to  be 
voted  for  at  general  elections.  The  board  of  freeholders 
shall,  within  one  hundred  and  twenty  days  after  the  result 
of  the  election  is  declared,  prepare  and  propose  a  charter 
for  the  government  of  such  city ;  but  the  said  period  of  one 
hundred  and  twenty  days  may  with  the  consent  of  the  legis- 
lative body  of  such  city  be  extended  by  such  board  not 
exceeding  a  total  of  sixty  days.  The  charter  so  prepared 
shall  be  signed  by  a  majority  of  the  board  of  freeholders 
and  filed  in  the  office  of  the  clerk  of  the  legislative  body  of 
said  city.  The  legislative  body  of  said  city  shall  within 
fifteen  days  after  such  filing  cause  such  charter  to  be  pub- 
lished once  in  the  official  paper  of  said  city;  (or  in  case 
there  be  no  such  paper,  in  a  paper  of  general  circulation)  ; 
and  shall  cause  copies  of  such  charter  to  be  printed  in  con- 
venient pamphlet  form,  and  shall,  until  the  date  fixed  for 
the  election  upon  such  charter,  advertise  in  one  or  more 
papers  of  general  circulation  published  in  said  city  a  notice 
that  such  copies  may  be  had  upon  application  therefor. 
Such  charter  shall  be  submitted  to  the  electors  of  such  city 
at  a  date  to  be  fixed  by  the  board  of  freeholders,  before 
such  filing  and  designated  on  such  charter,  either  at  a  spe- 
cial election  held  not  less  than  sixty  days  from  the  comple- 
tion of  the  publication  of  such  charter  as  above  provided, 
or  at  the  general  election  next  following  the  expiration  of 
said  sixty  days.  If  a  majority  of  the  qualified  voters  vot- 
ing thereon  at  such  general  or  special  election  shall  vote  in 
favor  of  such  proposed  charter,  it  shall  be  deemed  to  be  rati- 
fied, and  shall  be  submitted  to  the  legislature,  if  then  in 
session,  or  at  the  next  regular  or  special  session  of  the  legis- 
lature. The  legislature  shall  by  concurrent  resolution  ap- 
prove or  reject  such  charter  as  a  whole,  without  power  of 
alteration  or  amendment;  and  if  approved  by  a  majority  of 
the  members  elected  to  each  house  it  shall  become  the  or- 
ganic law  of  such  city  or  city  and  county,  and  supersede 
any  existing  charter  and  all  laws  inconsistent  therewith. 
One  copy  of  the  charter  so  ratified  and  approved  shall  be 
filed  with  the  secretary  of  state,  one  with  the  recorder  of 
the  county  in  which  such  city  is  located,  and  one  in  the 

Constitution — 5 


Art.  XI,  §  8  CONSTITUTION  OF  187"J.  66 

archives  of  the  city;  and  thereafter  the  courts  shall  take 
judicial  notice  of  the  provisions  of  such  charter.     The  char- 
ter of  any  city  or  city  and  county  may  be  amended  by  pro- 
posals therefor  submitted  by  the  legislative  body  of  the  city 
on  its  own  motion  or  on  petition  signed  by  fifteen  per  cent 
of  the  registered  electors,  or  both.     Such  proposals  shall  be 
submitted  to  the  electors  only  during  the  six  months  next 
preceding  a  regular  session  of  the  legislature  or  thereafter 
and  before  the  final  adjournment  of  that  session  and  at 
either  a  special  election  called  for  that  purpose  or  at  any 
general  or  special  election.     Petitions  for  the  submission  of 
any  amendment  shall  be  filed  with  the  legislative  body  of 
the  city  or  city  and  county  not  less  than  sixty  days  prior  to 
the  general  election  next  preceding  a  regular  session  of  the 
legislature.     The  signatures  on  such  petitions  shall  be  veri- 
fied by  the  authority  having  charge  of  the  registration  rec- 
ords of  such  city  or  city  and  county,  and  the  expenses  of 
such  verification  shall  be  provided  by  the  legislative  body 
thereof.     If  such  petitions  have  a  sufficient  number  of  sig- 
natures the  legislative  body  of  the  city  or  city  and  county 
shall  so  submit  the  amendment  or  amendments  so  proposed 
to  the  electors.     Amendments  proposed  by  the  legislative 
body  and  amendments  proposed  by  petition  of  the  electoi-s 
may  be  submitted  at  the  same  election.     The  amendments 
so  submitted  shall  be  advertised  in  the  same  manner  as 
herein  provided  for  the  advertisement  of  a  proposed  char- 
ter, and  the  election  thereon  held  at  a  date  to  be  fixed  by 
the  legislative  body  of  such  city,  not  less  than  forty  and  not 
more  than  sixty  days  after  the  completion  of  the  advertis- 
ing in  the  official  paper.     If  a  majority  of  the  qualified 
voters  voting  on  any  such  amendment  vote  in  favor  thereof 
it  shall  be  deemed  ratified,  and  shall  be  submitted  to  the 
legislature  at  the  regular  session  next  following  such  elec- 
tion; and  approved  or  rejected  Avithout  power  of  alteration 
in  the  same  manner  as  herein  provided  for  the  approval  or 
rejection  of  a  charter.     In  submitting  any  such  charter  or 
amendment   separate   propositions,    whether   alternative    or 
conflicting,  or  one  included  within  the  other,  may  be  sub- 
mitted at  the  same  time  to  be  voted  on  by  the  electors  sepa- 


67  COUNTIES,  CITIES  AND   TOWNS.      Art.  XI,  §  8a 

rately,  and,  as  between  those  so  related,  if  more  than  one 
receive  a  majority  of  the  votes,  the  proposition  receiving 
the  larger  number  of  votes  shall  control  as  to  all  matters  in 
conflict.  It  shall  be  competent  in  any  charter  framed  under 
the  authority  of  this  section  to  provide  that  the  municipal- 
ity governed  thereunder  may  make  and  enforce  all  laws 
and  regulations  in  respect  to  municipal  affairs,  subject  only 
to  the  restrictions  and  limitations  provided  in  their  several 
charters  and  in  respect  to  other  matters  they  shall  be  sub- 
ject to  general  laws.  It  shall  be  competent  in  any  charter 
to  provide  for  the  division  of  the  city  or  city  and  county 
governed  thereby  into  boroughs  or  districts,  and  to  provide 
that  each  such  borough  or  district  may  exercise  such  gen- 
eral or  special  municipal  powers,  and  to  be  administered  in 
such  manner,  as  may  be  provided  for  each  such  borough  or 
district  in  the  charter  of  the  city  or  city  and  county. 

The  percentages  of  the  registered  electors  herein  re- 
quired for  the  election  of  freeholders  or  the  submission  of 
amendments  to  charters  shall  be  calculated  upon  the  total 
vote  cast  in  the  city  or  city  and  county  at  the  last  preced- 
ing general  state  election ;  and  the  qualified  electors  shall 
be  those  whose  names  appear  upon  the  registration  records 
of  the  same  or  preceding  year.  The  election  laws  of  such 
city  or  city  and  county  shall,  so  far  as  applicable,  govern 
all  elections  held  under  the  authority  of  this  section. 
[Amendment  adopted  November  3,  1914.] 

Sec.  8a.  The  charter  of  the  city  and  country  of  San  Fran- 
cisco may  be  amended,  in  addition  to  the  method  and  the 
times  provided  in  section  8  of  article  XI  of  the  Constitution, 
in  the  following  particulars  : 

(a)  Authorizing  the  city  and  county  of  San  Francisco,  a 
municipal  corporation,  by  its  legislative  authoritj^,  to  incur 
a  bonded  indebtedness  in  an  amount  not  exceeding  five 
million  dollars,  and  to  issue  municipal  bonds  therefor,  and 
to  grant  and  turn  over  to  the  Panama-Pacific  International 
Exposition  Company  (a  corporation  organized  under  the 
laws  of  the  state  of  California  March  22,  1910)  the  proceeds 
of  said  bonds,  the  same  to  be  used  and  disbursed  by  said 
exposition  company  for  the  purpose  of  an  exposition  to  be 


Art.  XI,  §  8a  constitution  of  1879.  68 

held  in  the  city  and  county  of  San  Francisco  to  celebrate 
the  completion  of  the  Panama  Canal ;  said  bonds,  so  issued, 
to  be  of  such  form  and  to  be  redeemable,  registered  and 
converted  in  such  manner  and  amounts,  and  at  such  times 
not  later  than  forty  years  from  the  date  of  their  issue,  as 
such  legislative  authority  shall  determine ;  the  interest  on 
said  bonds  to  not  exceed  five  per  centum  per  annum,  and 
said  bonds  to  be  exempt  from  all  taxes  for  state  and  munici- 
pal purposes,  and  to  be  sold  for  not  less  than  par  at  such  times 
and  places,  and  in  such  manner,  as  shall  be  determined  by 
said  legislative  authority ;  the  proceeds  of  said  bonds,  when 
sold,  to  be  payable  immediately  by  the  treasurer  of  said  city 
and  county  to  the  treasurer  of  said  Panama-Pacific  Inter- 
national Exposition  Company,  upon  the  demand  of  said 
treasurer  of  said  exposition  company,  M^ithout  the  necessity 
of  the  approval  of  such  demand  by  other  authority,  the 
same  to  be  used  and  disbursed  by  said  Panama-Pacific  In- 
ternational Exposition  Company  for  the  purposes  of  such 
exposition,  under  the  direction  and  control  of  such  exposi- 
tion company; 

(b)  Providing  that  any  bonded  indebtedness  incurred  for 
the  purposes  aforesaid  shall  be  exclusive  of  the  bonded  in- 
debtedness of  the  said  city  and  county  limited  by  section 
nine  of  article  XII  of  said  charter ; 

(c)  Granting  to  said  Panama-Pacific  International  Expo- 
sition Company  the  exclusive  possession  and  use,  together 
with  the  management  and  control,  of  that  portion  of  Golden 
Gate  Park  in  the  city  and  county  of  San  Francisco  westerly 
from  Twentieth  avenue,  as  extended,  for  such  exposition 
purposes,  such  possession  and  use,  also  management  and 
control,  to  terminate  not  later  than  one  year  after  the  clos- 
ing of  such  exposition; 

(d)  Granting  to  said  Panama-Pacific  International  Expo- 
sition Company  the  exclusive  possession  and  use,  together 
with  the  management  and  control,  for  such  exposition  pur- 
poses, of  any  lands  held  by  the  board  of  education  of  the 
city  and  county  of  San  Francisco,  and  by  the  city  and 
county  of  San  Francisco,  not  in  actual  use,  such  possession 


1 


69  COUNTIES,  CITIES  AND   TOWNS.      Art.  XI,  §  8a 

and  use,  also  management  and  control,  to  terminate  not 
later  than  one  year  after  the  closing  of  such  exposition; 

(e)  Authorizing  said  Panama-Pacific  International  Expo- 
sition Company  to  temporarily  close  streets  in  the  city  and 
county  of  San  Francisco  westerly  from  Twentieth  avenue, 
for  such  exposition  purposes,  and  to  have  the  exclusive  pos- 
session and  use,  together  with  the  management  and  control, 
of  said  streets  for  such  exposition  purposes,  such  possession 
and  use,  also  management  and  control  of  said  streets,  to 
terminate  not  later  than  one  year  after  the  closing  of  such 
exposition. 

Proposals  to  amend  the  charter  of  the  city  and  county  of 
San  Francisco  in  the  foregoing  particulars  may  be  submit- 
ted by  the  legislative  authority  of  said  city  and  county  to 
the  electors  of  said  city  and  county,  at  any  general  or  spe- 
cial election  (and  a  special  election  may  be  called  therefor) 
held  in  said  city  and  county,  after  the  publication  of  such 
proposals  in  a  newspaper  of  general  circulation  in  said  city 
and  county,  for  such  time  as  shall  be  determined  by  said 
legislative  authority.  Upon  the  ratification  of  any  such 
proposed  amendment  by  a  majority  of  the  electors  of  said 
city  and  county  voting  at  such  election  on  such  proposed 
amendment,  said  proposed  amendment  receiving  such  ma- 
jority vote  shall  become  operative  immediately  as  an 
amendment  to  said  charter,  without  the  necessity  of  ap- 
proval thereof  by  the  legislature. 

Any  act  of  the  legislative  authority  of  the  city  and  county 
of  San  Francisco,  in  submitting  to  the  electors  of  said  city 
and  county,  at  any  general  or  special  election,  proposals  to 
amend  the  charter  of  said  city  and  county  in  the  foregoing 
particulars,  including  any  notice  by  pul)lication  or  other- 
wise of  such  proposals,  and  of  such  election,  and  the  holding 
of  such  election,  in  accordance  with  the  provisions  hereof, 
before  the  adoption  of  this  amendment,  are  hereby  vali- 
dated in  all  respects  as  if  performed  subsequent  to  the  adop- 
tion of  this  amendment.  The  disbursement  of  all  funds 
obtained  from  said  bonds  shall  be  accounted  for  by  said 
Panama-Pacific  International  Exposition  CoDipany  by  an 
itemized  statement  thereof  to  be  filed  with  the  auditor  of 


Art.  XI,  §  81/2  CONSTITUTION  OF  1879.  70 

the    city    and    county    of    San    Francisco.     [New    section 
adopted  November  8,  1910.] 

Sec.  81/2.  It  shall  be  competent,  in  all  charters  framed 
under  the  authority  given  by  section  8  of  this  article,  to  pro- 
vide, in  addition  to  those  provisions  allowable  by  this  Con- 
stitution and  by  the  laws  of  the  state  as  follows : 

1.  For  the  constitution,  regulation,  government,  and  juris- 
diction of  police  courts,  and  for  the  manner  in  which,  the 
times  at  which,  and  the  terms  for  which  the  judges  of  such 
courts  shall  be  elected  or  appointed,  and  for  the  qualifica- 
tions and  compensation  of  said  judges  and  of  their  clerks 
and  attaches ;  and  for  the  establishment,  constitution,  regu- 
lation, government  and  jurisdiction  of  municipal  courts, 
with  such  civil  and  criminal  jurisdiction  as  by  law  may  be 
conferred  upon  inferior  courts;  and  for  the  manner  in 
which,  the  times  at  which,  and  the  terms  for  which  the 
judges  of  such  courts  shall  be  elected  or  appointed,  and  for 
the  qualifications  and  compensation  of  said  judges  and  of 
their  clerks  and  attaches;  provided,  such  municipal  courts 
shall  never  be  deprived  of  the  jurisdiction  given  inferior 
courts  created  by  general  law. 

In  any  city  or  any  city  and  county,  when  such  municipal 
court  has  been  established,  there  shall  be  no  other  court  in- 
ferior to  the  superior  court ;  and  pending  actions,  trials,  and 
all  pending  business  of  inferior  courts  within  the  territory 
of  such  city  or  city  and  county,  upon  the  establishment  of 
any  such  municipal  court,  shall  be  and  become  pending  in 
such  municipal  court,  and  all  records  of  such  inferior  courts 
shall  thereupon  be  and  become  the  records  of  such  municipal 
court. 

2.  For  the  manner  in  which,  the  times  of  which,  and  the 
terms  for  which  the  members  of  boards  of  education  shall 
be  elected  or  appointed,  for  their  qualifications,  compensa- 
tion and  removal,  and  for  the  number  which  shall  constitute 
any  one  of  such  boards. 

3.  For  the  manner  in  which,  the  times  at  which  and  the 
terms  for  which  the  members  of  the  boards  of  police  com- 
missioners shall  be  elected  or  appointed;  and  for  the  con- 


71  COUNTIES,  CITIES  AND  TOWNS.      Art.  XI,  §  S^/^ 

stitution,  regulation,  compensation,  and  government  of  such 
boards  and  of  the  municipal  police  force. 

4.  For  the  manner  in  which  and  the  times  at  which  any 
municipal  election  shall  be  held  and  the  result  thereof  de- 
termined ;  for  the  manner  in  which,  the  times  at  which,  and 
the  terms  for  which  the  members  of  all  boards  of  election 
shall  be  elected  or  appointed,  and  for  the  constitution,  regu- 
lation, compensation  and  government  of  such  boards,  and 
of  their  clerks  and  attaches,  and  for  all  expenses  incident 
to  the  holding  of  any  election. 

It  shall  be  competent  in  any  charter  framed  in  accord- 
ance with  the  provisions  of  this  section,  or  section  8  of  this 
article,  for  any  city  or  consolidated  city  and  county,  and 
plenary  authority  is  hereby  granted,  subject  only  to  the 
restrictions  of  this  article,  to  provide  therein  or  by  amend- 
ment thereto,  the  manner  in  which,  the  method  by  which, 
the  times  at  which,  and  the  terms  for  which  the  several 
county  and  municipal  officers  and  employees  whose  compen- 
sation is  paid  by  such  city  or  city  and  county,  excepting 
judges  of  the  superior  court,  shall  be  elected  or  appointed, 
and  for  their  recall  and  removal,  and  for  their  com- 
pensation, and  for  the  number  of  deputies,  clerks  and  other 
employees  that  each  shall  have,  and  for  the  compensation, 
method  of  appointment,  qualifications,  tenure  of  office  and 
removal  of  such  deputies,  clerks  and  other  employees.  All 
provisions  of  any  charter  of  any  such  city  or  consolidated 
city  and  county,  heretofore  adopted,  .and  amendments 
thereto,  which  are  in  accordance  herewith,  are  hereby  con- 
firmed and  declared  valid. 

5.  It  shall  be  competent  in  any  charter  or  amendment 
thereof,  Avhich  shall  hereafter  be  framed  under  the  author- 
ity given  by  section  8  of  this  article,  by  any  city  having  a 
population  in  excess  of  fifty  thousand  ascertained  as  pre- 
scribed by  said  section  8,  to  provide  for  the  separation  of 
said  city  from  the  county  of  which  it  has  theretofore  been 
a  part  and  the  formation  ,of  said  city  into  a  consolidated 
city  and  county  to  be  governed  by  such  charter,  and  to 
have  combined  powers  of  a  city  and  county,  as  provided  in 
this  Constiiutioii  for  consolidated  city  and  county  govern- 


Art.  XI,  §  81/2  CONSTITUTION  OF  1879.  72 

ment,  and  further  to  prescribe  in  said  charter  the  date  for 
the  beginning  of  the  official  existence  of  said  consolidated 
city  and  county. 

It  shall  also  be  competent  for  any  such  city,  not  having 
already  consolidated  as  a  city  and  county  to  hereafter 
frame,  in  the  manner  prescribed  in  section  8  of  this  article, 
a  charter  providing  for  a  city  and  county  government,  in 
which  charter  there  shall  be  prescribed  territorial  bounda- 
ries which  may  include  contiguous  territory  not  included 
in  such  city,  which  territory,  however,  must  be  included  in 
the  county  within  which  such  city  is  located. 

If  no  additional  territory  is  proposed  to  be  added,  then, 
upon  the  consent  to  the  separation  of  any  such  city  from 
the  county  in  which  it  is  located,  being  given  by  a  majority 
of  the  qualified  electors  voting  thereon  in  such  county  and 
upon  the  ratification  of  such  charter  by  a  majority  of  the 
qualified  electors  voting  thereon  in  such  city,  and  the  ap- 
proval thereof  by  the  legislature,  as  prescribed  in  section  8 
of  this  article,  said  charter  shall  be  deemed  adopted  and 
upon  the  date  fixed  therein  said  city  shall  be  and  become  a 
consolidated  city  and  county. 

If  additional  territory  which  consists  wholly  of  only  one 
incorporated  city  or  town,  or  which  consists  wholly  of  unin- 
corporated territory,  is  proposed  to  be  added,  then,  upon 
the  consent  to  such  separation  of  such  territory  and  of  the 
city  initiating  the  consolidation  proposal  being  given  by  a 
majority  of  the  qualified  electors  voting  thereon  in  the 
county  in  which  the  city  proposing  such  separation  is  lo- 
cated, and  upon  the  ratification  of  such  charter  by  a  major- 
ity of  the  qualified  electors  voting  thereon  in  such  city  so 
l^roposing  the  separation,  and  also  upon  the  approval  of  the 
proposal  hereinafter  set  forth,  by  a  majority  of  the  qualified 
electors  voting  thereon  in  the  whole  of  such  additional  ter- 
ritory, and  the  approval  of  said  charter  by  the  legislature, 
as  prescribed  in  section  8  of  this  article,  said  charter  shall 
be  deemed  adopted,  the  indebtedness  hereinafter  referred 
to  shall  be  deemed  to  have  been  assumed,  and  upon  the  date 
fixed  in  said  charter  such  territory  and  such  city  shall  be 
and  become  one  consolidated  city  and  county. 


73  COUNTIES,  CITIES  AND  TOWNS.      Art.  XI,  §  8V2 

The  proposal  to  be  submitted  to  the  territory  proposed 
to  be  added  shall  be  substantially  in  the  following  form  and 
submitted  as  one  indivisible  question : 

"Shall  the  territory  (herein  designate  in  general  terms 
the  territory  to  be  added)  consolidate  with  the  city  of 
(herein  insert  name  of  the  city  initiating  the  proposition  to 
form  a  city  and  county  government)  in  a  consolidated  city 
and  county  government,  and  shall  the  charter  as  prepared 
by  the  city  of  (herein  insert  the  name  of  the  city  initiating 
such  proposition)  be  adopted  as  the  charter  of  the  consoli- 
dated city  and  county,  and  shall  the  said  added  territory 
become  subject  to  taxation  along  with  the  entire  territory 
of  the  proposed  city  and  county,  in  accordance  with  the 
assessable  valuation  of  the  property  of  the  said  territory, 
for  the  following  indebtedness  of  said  city  (herein  insert 
name  of  the  city  initiating  such  proposition)  to  wit:  (herein 
insert  in  general  terms  reference  to  any  debts  to  be  assumed, 
and  if  none  insert  'none')." 

If  additional  territory  is  proposed  to  be  added,  which 
includes  unincorporated  territory,  and  one  or  more  incor- 
porated cities  or  towns,  or  which  includes  more  than  one 
incorporated  city  or  town,  the  consent  of  any  such  incor- 
porated city  or  town  shall  be  obtained  by  a  majority  vote  of 
the  qualified  electors  thereof  voting  upon  a  proposal  sub- 
stantially as  follows : 

"Shall  (herein  insert  the  name  of  the  city  or  toAvn  to  be 
included  in  such  additional  territory)  be  included  in  a  dis- 
trict to  be  hereafter  defined  by  the  city  of  (herein  insert 
the  name  of  the  city  initiating  the  proposition  to  form  a  city 
and  county  government)  which  district  shall,  within  two 
years  from  the  date  of  this  election,  vote  upon  a  proposal 
submitted  as  one  indivisible  question  that  such  district  to 
be  then  described  and  set  forth  shall  consolidate  with 
(herein  insert  name  of  the  city  initiating  said  consolidation 
proposition)  in  a  consolidated  city  and  county  government, 
and  also  that  a  certain  charter,  to  be  prepared  by  the  city 
of  (herein  insert  name  of  the  city  initiating  such  proposi- 
tion) be  adopted  as  the  charter  of  such  consolidated  city 
ard  county,  and  that  such  district  become  subject  to  taxa- 


Art.  XI,  §  8V2  CONSTITUTION  OF  1879.  7-i 

tion  along  with  the  entire  territory  of  the  proposed  city 
and  county  in  accordance  with  the  assessable  valuation  of 
the  property  of  said  district  for  the  following  indebtedness 
of  said  city  of  (herein  insert  name  of  the  city  initiating  such 
proposition)  to  wit:  (herein  insert  in  general  terms,  refer- 
ence to  any  debts  to  be  assumed  and  if  none  insert  'none')." 

Any  and  all  incorporated  cities  or  towns  to  which  the 
foregoing  proposal  shall  have  been  submitted  and  a  major- 
ity of  whose  qualified  electors  voting  thereon  shall  have 
voted  in  favor  thereof,  together  Avith  such  unincorporated 
territory  as  the  city  initiating  such  consolidation  proposal 
may  desire  to  have  included,  the  whole  to  form  an  area  con- 
tiguous to  said  city,  shall  be  created  into  a  district  by  such 
city,  and  the  proposal  substantially  as  above  prescribed  to 
be  used  when  the  territory  proposed  to  be  added  consists 
wholly  of  only  one  incorporated  city  or  town,  or  wholly  of 
unincorporated  territory,  shall,  within  two  years,  be  sub- 
mitted to  the  voters  of  said  entire  district  as  one  indivis- 
ible question. 

Upon  consent  to  the  separation  of  such  district  and  of  the 
city  initiating  the  consolidation  proposal  being  given  by  a 
majority  of  the  qualified  electors  voting  thereon  in  the 
county  in  which  the  city  proposing  such  separation  is 
located,  and  upon  the  ratification  of  such  charter  by  a  ma- 
jority of  the  qualified  electors  voting  thereon  in  such  city, 
and  upon  the  approval  of  the  proposal  hereinbefore  set 
forth  by  a  majority  of  the  qualified  electors  voting  thereon 
in  the  whole  of  said  district  so  proposed  to  be  added,  and 
upon  the  approval  of  said  charter  by  the  legislature,  as  pre- 
scribed in  section  8  of  this  article,  said  charter  shall  be 
deemed  adopted,  the  said  indebtedness  referred  to  in  said 
proposal  shall  be  deemed  to  have  been  assumed,  and  upon 
the  date  fixed  in  said  charter,  such  district  and  such  city 
shall  be  and  become  one  consolidated  city  and  county. 

6.  It  shall  be  competent  for  any  consolidated  city  and 
county  now  existing,  or  which  shall  hereafter  be  organized, 
to  annex  territory  contiguous  to  such  consolidated  city  and 
county,  unincorporated  or  otherwise,  whether  situated 
wholly  in  one  county,  or  parts  thereof  be  situate  in  differ- 


75  COUNTIES,  CITIES  xVND  TO^^^s^s.     Art.  XI,  §  8i^ 

ent  counties,  said  annexed  territory  to  be  an  integral  part 
of  such  city  and  county,  provided  that  such  annexation  of 
territory  shall  only  include  any  part  of  the  territory  which 
Avas  at  the  time  of  the  original  consolidation  of  the  annex- 
ing city  and  county,  within  the  county  from  which  such  an- 
nexing city  and  county  was  formed,  together  with  territory 
which  was  concurrently,  or  has  since  such  consolidation 
been  joined  in  a  county  government  with  the  area  of  the 
original  county  not  included  in  such  consolidated  city  and 
county. 

If  additional  territory,  which  consists  wholly  of  only  one 
incorporated  city,  city  and  county  or  town,  or  which  con- 
sists wholly  of  unincorporated  territory,  is  proposed  to  be 
annexed  to  any  consolidated  city  and  county  now  existing 
or  which  shall  hereafter  be  organized,  then,  upon  the  con- 
sent to  any  such  annexation  being  given  by  a  majority  of 
the  qualified  electors  voting  thereon  in  any  county  or  coun- 
ties in  which  any  such  additional  territory  is  located,  and 
upon  the  approval  of  such  annexation  proposal  by  a  major- 
ity of  the  qualified  electors  voting  thereon  in  such  city  and 
county,  and  also  upon  the  approval  of  the  proposal  herein- 
after set  forth  by  a  majority  of  the  qualified  electors  voting 
thereon  in  the  whole  of  such  territory  proposed  to  be  an- 
nexed, the  indebtedness  hereinafter  referred  to  shall  be 
deemed  to  have  been  assumed,  and  at  the  time  stated  in  such 
proposal,  such  additional  territory  and  such  city  and  county 
shall  be  and  become  one  consolidated  city  and  county,  to  be 
governed  by  the  charter  of  the  city  and  county  proposing 
such  annexation,  and  any  subsequent  amendment  thereto. 

The  proposal  to  be  submitted  to  the  territory  proposed  to 
be  annexed,  shall  be  substantially  in  the  following  form  and 
submitted  as  one  indivisible  question : 

"Shall  the  territory  (herein  designate  in  general  terms 
the  territory  to  be  annexed)  consolidate  with  the  city  and 
county  of  (herein  insert  the  name  of  the  city  and  county  ini- 
tiating the  annexation  proposal)  in  a  consolidated  city  and 
county  government,  said  consolidation  to  take  effect  (herein 
insert  date  Avhen  such  consolidation  shall  take  effect)  and 
shall  the  said  annexed  territory  become  subject  to  taxation, 


Art.  XI,  §  81/2  CONSTITUTION  OF  1879.  76 

as  an  integral  part  of  the  city  and  county  so  formed,  in 
accordance  with  the  assessable  valuation  of  property  of  said 
territory  for  the  following  indebtedness  of  said  city  and 
county  of  (herein  insert  name  of  the  city  and  county)  to 
wit :  (herein  insert  in  general  terms,  reference  to  any  debts 
to  be  assumed  and  if  none  insert  'none')." 

If  additional  territory  including  unincorporated  territory 
and  one  or  more  incorporated  cities,  cities  and  counties,  or 
towns,  or  including  more  than  one  incorporated  city,  city 
and  county,  or  town,  is  proposed  to  be  annexed  to  any  con- 
solidated city  and  county  now  existing  or  which  shall  here- 
after be  organized,  the  consent  of  each  such  incorporated 
city,  city  and  county,  or  town,  shall  be  obtained  by  a  major- 
ity vote  of  the  qualified  electors  of  any  such  incorporated 
city,  city  and  county,  or  town,  voting  upon  a  proposal  sub- 
stantially as  follows : 

"Shall  (herein  insert  name  of  the  city,  city  and  county, 
or  town,  to  be  included  in  such  annexed  territory)  be  in- 
cluded in  a  district  to  be  hereafter  defined  by  the  city  and 
county  of  (herein  insert  the  name  of  the  city  and  county 
initiating  the  annexation  proposal)  which  district  shall 
within  two  years  from  the  date  of  this  election  vote  upon 
a  proposal  submitted  as  one  indivisible  question,  that  such 
district  to  be  then  described  and  set  forth  shall  consolidate 
with  (herein  insert  name  of  the  city  and  county  initiating 
the  annexation  proposal)  in  a  consolidated  city  and  county 
government,  and  that  such  district  become  subject  to  taxa- 
tion, along  with  the  entire  territory  of  the  proposed  city 
and  county  in  accordance  with  the  assessable  valuation  of 
the  property  of  said  district  for  the  following  indebtedness 
of  said  city  and  county  of  (herein  insert  name  of  the  city 
and  county  initiating  the  annexation  proposal)  to  wit: 
(herein  insert  in  general  terms,  reference  to  any  debts  to 
be  assumed  and  if  none  insert  'none')." 

Any  and  all  incorporated  cities,  cities  and  counties,  or 
towns,  to  which  the  foregoing  proposal  shall  have  been  sub- 
mitted, and  a  majority  of  whose  qualified  electors  voting 
thereon  shall  have  voted  in  favor  thereof,  together  with 
such  unincorporated  territory  as  the  city  and  county  initi- 


77  COUNTIES,  CITIES  AND  TOWNS,      Art.  XI,  §  8V2 

ating  such  annexation  proposal  may  desire  to  have  in- 
cluded, the  whole  to  form  an  area  contiguous  to  said  city 
and  county,  shall  be  created  into  a  district  by  said  city  and 
county,  and  the  proposal  substantially  in  the  form  above 
set  forth  to  be  used  when  the  territory  proposed  to  be  added 
consists  wholly  of  only  one  incorporated  city,  city  and 
county,  or  town,  or  Avholly  of  unincorporated  territory, 
shall,  within  said  two  years,  be  submitted  to  the  voters  of 
said  entire  district  as  one  indivisible  question. 

Upon  consent  to  any  such  annexation  being  given  by  a 
majority  of  the  qualified  electors  voting  thereon  in  any 
county  or  counties  in  which  any  such  territory  proposed  to 
be  annexed  to  said  city  and  county  is  located,  and  upon  the 
approval  of  any  such  annexation  proposal  by  a  majority  of 
the  qualified  electors  voting  thereon  in  such  city  and  county 
proposing  such  annexation,  and  also  upon  the  approval  of 
the  proposal  hereinbefore  set  forth  by  a  majority  of  the 
qualified  electors  voting  thereon  in  the  whole  of  the  district 
so  proposed  to  be  annexed,  then,  the  said  indebtedness  re- 
ferred to  in  said  proposal  shall  be  deemed  to  have  been 
assumed,  and  upon  the  date  stated  in  such  annexation  pro- 
posal such  district  and  such  city  and  county  shall  be  and 
become  one  consolidated  city  and  county,  to  be  governed 
by  the  charter  of  the  city  and  county  proposing  such  an- 
nexation, and  any  subsequent  amendment  thereto. 

Whenever  any  proposal  is  submitted  to  the  electors  of 
any  county,  territory,  district,  city,  city  and  county,  or 
town,  as  above  provided,  there  shall  be  published,  for  at 
least  five  successive  publications,  in  a  newspaper  of  general 
circulation  printed  and  published  in  any  such  county,  ter- 
ritory, district,  city,  city  and  county,  or  town,  the  last  pub- 
lication to  be  not  less  than  twenty  days  prior  to  any  such 
election,  a  particular  description  of  any  territory  or  district 
to  be  separated,  added,  or  annexed,  together  with  a  par- 
ticular description  of  any  debts  to  be  assumed,  as  above 
referred  to,  unless  such  particular  description  is  contained 
in  the  said  proposal  so  submitted.  In  addition  to  said  de- 
scription, such  territory  shall  also  be  designated  in  such 
notice  by  some  appropriate  name  or  other  words  of  identifi- 


Art.  XI,  §  81/2  CONSTITUTION  OF  1879.  78 

cation,  by  which  such  territory  may  be  referred  to  and  indi- 
cated upon  the  ballots  to  be  used  at  any  election  at  which 
the  question  of  annexation  or  consolidation  of  additional 
territory  is  submitted  as  herein  provided.  If  there  be  no 
such  newspaper  so  printed  and  published  in  any  such 
county,  territory,  district,  city,  city  and  county,  or  town, 
then  such  publication  may  be  made  in  any  newspaper  of 
general  circulation  printed  and  published  in  the  nearest 
county,  city,  city  and  county,  or  town  where  there  may  be 
such  a  newspaper  so  printed  and  published. 

If,  by  the  adoption  of  any  charter,  or  by  annexation,  any 
incorporated  municipality  becomes  a  portion  of  a  city  and 
county,  its  property,  debts  and  liabilities  of  every  descrip- 
tion shall  be  and  become  the  property,  debts  and  liabilities 
of  such  city  and  county. 

Every  city  and  county  Avhich  shall  be  formed,  or  the  ter- 
ritory of  which  shall  be  enlarged  as  herein  provided  from 
territory  taken  from  any  county  or  counties,  shall  be  liable 
for  a  just  proportion  of  the  debts  and  liabilities  and  be 
entitled  to  a  just  proportion  of  the  property  and  assets  of 
such  county  or  counties,  existing  at  the  time  such  territory 
is  so  taken. 

The  provisions  of  this  Constitution  applicable  to  cities, 
and  cities  and  counties,  and  also  those  applicable  to  coun- 
ties, so  far  as  not  inconsistent  or  prohibited  to  cities,  or 
cities  and  counties,  shall  be  applicable  to  such  consolidated 
city  and  county  government;  and  no  provision  of  subdivi- 
sion five  or  six  of  this  section  shall  be  construed  as  a  restric- 
tion upon  the  plenary  authority  of  any  city  or  city  and 
county  having  a  freeholders'  charter,  as  provided  for  in  this 
Constitution,  to  determine  in  said  charter  any  and  all  mat- 
ters elsewhere  in  this  Constitution  authorized  and  not  incon- 
sistent herewith. 

The  legislature  shall  provide  for  the  formation  of  one  or 
more  counties  from  the  portion  or  portions  of  a  county  or 
counties  remaining  after  the  formation  of  or  annexation  to 
a  consolidated  city  and  county,  or  for  the  transfer  of  such 
portion  or  portions  of  such  original  county  or  counties  to 
adjoining    counties.     But    such    transfer    to    an    adjoining 


79  COUNTIES,  CITIES  AND  TOWNS.      Art.  XI,  §  81/2 

county  shall  only  be  made  after  approval  by  a  majority  vote 
of  the  qualified  electors  voting  thereon  in  such  territory  pro- 
posed to  be  so  transferred. 

The  provisions  of  section  2  of  this  article,  and  also  those 
provisions  of  section  3  of  this  article  which  refer  to  the 
passing  of  any  county  line  within  five  miles  of  the  exterior 
boundary  of  a  city  or  town  in  which  a  county  seat  of  any 
county  proposed  to  be  divided  is  situated,  shall  not  apply  to 
the  formation  of,  nor  to  the  extension  of  the  territory  of 
such  consolidated  cities  and  counties,  nor  to  the  formation 
of  new  counties,  nor  to  the  annexation  of  existing  counties, 
as  herein  specified. 

Any  city  and  county  formed  under  this  section  shall  have 
the  right,  if  it  so  desires,  to  be  designated  by  the  official 
name  of  the  city  initiating  the  consolidation  as  it  existed 
immediately  prior  to  its  adoption  of  a  charter  providing  for 
a  consolidated  city  and  county  government,  except  that 
such  city  and  county  shall  be  known  under  the  style  of  a 
city  and  county. 

It  shall  be  competent  in  any  charter  framed  for  a  consoli- 
dated city  and  county,  or  by  amendment  thereof,  to  provide 
for  the  establishment  of  a  borough  system  of  government 
for  the  whole  or  any  part  of  the  territory  of  said  city  and 
county,  by  which  one  or  more  districts  may  be  created 
therein,  Avhich  districts  shall  be  knoAvn  as  boroughs  and 
which  shall  exercise  such  municipal  powers  as  may  be 
granted  thereto  by  such  charter,  and  for  the  organization, 
regulation,  government  and  jurisdiction  of  such  boroughs. 

No  property  in  any  territory  hereafter  consolidated  with 
or  annexed  to  any  city  or  city  and  county  shall  be  taxed  for 
the  payment  of  any  indebtedness  of  such  city  or  city  and 
county  outstanding  at  the  date  of  such  consolidation  or  an- 
nexation and  for  the  payment  of  which  the  property  in  such 
territory  was  not,  prior  to  such  consolidation  or  annexation, 
subject  to  such  taxation,  unless  there  shall  have  been  sub- 
mitted to  the  qualified  electors  of  such  territory  the  propo- 
sition regarding  the  assumption  of  indebtedness  as  herein- 
before set  forth  and  the  same  shall  have  been  approved  by 
a  majority  of  such  electors  voting  thereon. 


Art.  XI,  §§  9-12        CONSTITUTION  OF  1879.  80 

7.  In  all  cases  of  annexation  of  unincorporated  territory 
to  an  incorporated  city,  or  the  consolidation  of  two  or  more 
incorporated  cities,  assumption  of  existing  bonded  indebted- 
ness by  such,  unincorporated  territory  or  by  either  of  the 
cities  so  consolidating  may  be  made  by  a  majority  vote  of 
the  qualified  electors  voting  thereon  in  the  territory  or  city 
which  shall  assume  an  existing  bonded  indebtedness.  This 
provision  shall  apply  whether  annexation  or  consolidation  is 
effected  under  this  section  or  any  other  section  of  this  Con- 
stitution, and  the  provisions  of  section  18  of  this  article 
shall  not  be  a  prohibition  thereof. 

The  legislature  shall  enact  such  general  laws  as  may  be 
necessary  to  carry  out  the  provisions  of  this  section  and 
such  general  or  special  laws  as  may  be  necessary  to  carry 
out  the  provisions  of  subdivisions  5  and  6  of  this  section, 
including  any  such  general  or  special  act  as  may  be  neces- 
sary to  permit  a  consolidated  city  and  county  to  submit  a 
new  charter  to  take  effect  at  the  time  that  any  consolida- 
tion, by  reason  of  annexation  to  such  consolidated  city  and 
county,  takes  effect,  and,  also,  any  such  general  law  or  spe- 
cial act  as  may  be  necessary  to  provide  for  any  period  after 
such  consolidation,  by  reason  of  such  annexation,  takes 
effect,  and  prior  to  the  adoption  and  approval  of  any  such 
new  charter.     [Amendment  adopted  November  3,  1914.] 

Sec.  9.  The  compensation  of  any  county,  city,  town,  or 
municipal  officer  shall  not  be  increased  after  his  election  or 
during  his  term  of  office;  nor  shall  the  term  of  any  such 
officer  be  extended  beyond  the  period  for  which  he  is  elected 
or  appointed. 

Sec.  10.     [Repealed  November  8,  1910.] 

Sec.  11.  Any  county,  city,  town,  or  township  may  make 
and  enforce  within  its  limits  all  such  local,  police,  sanitary, 
and  other  regulations  as  are  not  in  conflict  with  general 
laws. 

Sec.  12.  The  legislature  shall  have  no  power  to  impose 
taxes  upon  counties,  cities,  towns  or  other  public  or  munici- 
pal corporations,  or  upon  the  inhabitants  or  property 
thereof,  for  county,  city,  town,  or  other  municipal  purposes, 


81  COUNTIES,  CITIES  AND  TOWNS.      Art.  XI,  §§  13-16 

but  may,  by  general  laws,  vest  in  the  corporate  authorities 
thereof  the  power  to  assess  and  collect  taxes  for  such 
purposes. 

Sec.  13.  The  legislature  shall  not  delegate  to  any  special 
commission,  private  corporation,  company,  association  or  in- 
dividual any  power  to  make,  control,  appropriate,  super- 
vise or  in  any  way  interfere  with  any  county,  city,  town  or 
municipal  improvement,  money,  property,  or  effects, 
whether  held  in  trust  or  otherwise,  or  to  levy  taxes  or  as- 
sessments or  perform  any  municipal  function  whatever, 
except  that  the  legislature  shall  have  power  to  provide  for 
the  supervision,  regulation  and  conduct,  in  such  manner  as 
it  may  determine,  of  the  affairs  of  irrigation  districts,  recla- 
mation districts  or  drainage  districts,  organized  or  existing 
under  any  law  of  this  state.  [Amendment  adopted  Novem- 
ber 3,  1914.] 

Sec.  13 V^.  Any  county,  city  and  county,  city,  town, 
municipality,  irrigation  district,  or  other  public  corporation, 
issuing  bonds  under  the  laws  of  the  state,  is  hereby  author- 
ized and  empowered  to  make  said  bonds  and  the  interest 
thereon  payable  at  any  place  or  places  within  or  outside  of 
the  United  States,  and  in  any  money,  domestic  or  foreign, 
designated  in  said  bonds.  [Amendment  adopted  November 
3,  1914.] 

Sec.  14.  The  legislature  may  by  general  and  uniform  laws 
provide  for  the  inspection,  measurement  and  graduation  of 
merchandise,  manufactured  articles  and  commodities,  and 
may  provide  for  the  appointment  of  such  officers  as  may  be 
necessary  for  such  inspection,  measurement  and  graduation. 
[Amendment  adopted  October  10,  1911.] 

Sec.  15.  Private  property  shall  not  be  taken  or  sold  for 
the  payment  of  the  corporate  debt  of  any  political  or 
municipal  corporation. 

Sec.  16.  All  moneys,  assessments,  and  taxes  belonging  to 
or  collected  for  the  use  of  any  county,  city,  town,  or  other 
public  or  municipal  corporation,  coming  into  the  hands  of 
any  officer  thereof,  shall  immediately  be  deposited  with  tho 
treasurer,  or  other  legal  depositary,  to  the  credit  of  sucli 

Constitution — 6 


Art.  XI,  §§  161/2-18     CONSTITUTION  OF  1879.  82 

city,  town,  or  other  corporation,  respectively,  for  the  bene- 
fit of  the  funds  to  which  they  respectively  belong. 

Sec.  161/2-  -A-ll  moneys  belonging  to  the  state,  or  to  any 
county  or  municipality  within  this  state,  may  be  deposited 
in  any  national  bank  or  banks  within  this  state,  or  in  any 
bank  or  banks  organized  under  the  laws  of  this  state,  in 
such  manner  and  under  such  conditions  as  may  be  provided 
by  law ;  provided,  that  such  bank  or  banks-  in  which  such 
moneys  are  deposited  shall  furnish  as  security  for  such 
deposits,  bonds  of  the  United  States,  or  of  this  state  or  of 
any  county,  municipality  or  school  district  within  this  state, 
or  of  any  irrigation  district  within  this  state,  to  be  approved 
by  the  officer  or  officers  designated  by  law,  to  an  amount  in 
value  of  at  least  ten  per  cent  in  excess  of  the  amount  of 
such  deposit ;  and  provided,  that  such  bank  or  banks  shall 
pay  a  reasonable  rate  of  interest,  not  less  than  two  per  cent 
per  annum  on  the  daily  balances  therein  deposited ;  and  pro- 
vided, that  no  deposit  shall  at  any  one  time  exceed  fifty  per 
cent  of  the  paid-up  capital  stock  of  such  depositary  bank  or 
banks;  and  provided,  further,  that  no  officer  shall  deposit 
at  one  time  more  than  twenty  per  cent  of  such  public 
moneys  available  for  deposit  in  any  bank  while  there  are 
other  qualified  banks  requesting  such  deposits.  [Amended 
November  5,  1912.] 

Sec.  17.  The  making  of  profit  out  of  county,  city,  town, 
or  other  public  money,  or  using  the  same  for  any  purpose 
not  authorized  by  law,  by  any  officer  having  the  possession 
or  control  thereof,  shall  be  a  felony,  and  shall  be  prosecuted 
and  punished  as  prescribed  by  law. 

Sec.  18.  No  county,  city,  town,  township,  board  of  educa- 
tion or  school  district,  shall  incur  any  indebtedness  or  lia- 
bility in  any  manner  or  for  any  purpose  exceeding  in  any 
year  the  income  and  revenue  provided  for  such  year,  with- 
out the  assent  of  two-thirds  of  the  qualified  electors  thereof, 
voting  at  an  election  to  be  held  for  that  purpose,  nor  unless 
before  or  at  the  time  of  incurring  such  indebtedness  provi- 
sion shall  be  made  for  the  collection  of  an  annual  tax  suffi- 
cient to  pay  the  interest  on  such  indebtedness  as  it  falls  due, 


83  COUNTIES,  CITIES  AND  TOWNS.  Art.  XI,  §  IS 

and  also  provision  to  constitute  a  sinking  fund  for  the 
payment  of  the  principal  thereof  on  or  before  maturity, 
which  shall  not  exceed  forty  years  from  the  time  of  con- 
tracting the  same;  provided,  however,  that  the  city  and 
county  of  San  Francisco  may  at  any  time  pay  the  unpaid 
claims,  Avith  interest  thereon  at  the  rate  of  five  per  cent 
per  annum,  for  materials  furnished  to  and  work  done  for 
said  city  and  county  during  the  forty-first,  forty-second, 
forty-third,  forty-fourth,  and  fiftieth  fiscal  years,  and  for 
unpaid  teachers'  salaries  for  the  fiftieth  fiscal  year,  out  of 
the  income  and  revenue  of  any  succeeding  year  or  years,  the 
amount  to  be  paid  in  full  of  said  claims  not  to  exceed  in  the 
aggregate  the  sum  of  five  hundred  thousand  dollars,  and 
that  no  statute  of  limitations  shall  apply  in  any  manner  to 
these  claims ;  and  provided,  further,  that  the  city  of  Vallejo, 
of  Solano  county,  may  pay  its  existing  indebtedness,  in- 
curred in  the  construction  of  its  waterworks,  whenever  two- 
thirds  of  the  electors  thereof,  voting  at  an  election  held 
for  that  purpose,  shall  so  decide,  and  that  no  statute  of 
limitations  shall  apply  in  any  manner.  Any  indebtedness 
or  liability  incurred  contrary  to  this  provision,  with  the  ex- 
ceptions hereinbefore  recited,  shall  be  void.  The  city  and 
county  of  San  Francisco,  the  city  of  San  Jose,  and  the  town 
of  Santa  Clara  may  make  provision  for  a  sinking  fund,  to 
pay  the  principal  of  any  indebtedness  incurred,  or  to  be 
hereafter  incurred  by  it,  to  commence  at  a  time  after  the 
incurring  of  such  indebtedness  of  no  more  than  a  period  of 
one-fourth  of  the  time  of  maturity  of  such  indebtedness, 
which  shall  not  exceed  seventy-five  years  from  the  time  of 
contracting  the  same.  Any  indebtedness  incurred  contrary 
to  any  provision  of  this  section  shall  be  void ;  and  provided, 
further,  that  the  county  of  Alameda  may,  upon  the  assent  of 
two-thirds  of  the  qualified  electors  thereof  voting  at  an  elec- 
tion to  be  held  for  that  purpose,  incur  a  bonded  indebted- 
ness of  not  to  exceed  one  million  dollars,  and  the  legislative 
authority  of  said  county  of  Alameda  shall  issue  bonds  there- 
for and  grant  and  turn  over  to  the  Panama-Pacific  Interna- 
tional Exposition  Company,  a  corporation  organized  under 
the  laws  of  the  state  of  California,  jMarch  22,  1910,  the  pro- 


Art.  XI,  §  19  CONSTITUTION  OF  1879.  84 

ceeds  of  said  bojads  for  stock  in  said  company  or  under  such 
other  terms  and  conditions  as  said  legislative  authority  may 
determine,  the  same  to  be  used  and  disbursed  by  said  ex- 
position company  for  the  purpose  of  an  exposition  to  be  held 
in  the  city  and  county  of  San  Francisco  to  celebrate  the 
completion  of  the  Panama  canal ;  said  bonds,  so  issued,  to  be 
of  such  form  and  to  be  redeemable,  registered  and  converted 
in  such  manner  and  amounts,  and  at  such  times  not  later 
than  forty  years  from  the  date  of  their  issue  as  the  legisla- 
tive authority  of  said  county  of  Alameda  shall  determine; 
the  interest  on  said  bonds  not  to  exceed  five  per  centum  per 
annum,  and  said  bonds  to  be  exempted  from  all  taxes  for 
state,  county  and  municipal  purposes,  and  to  be  sold  for  not 
less  than  par  at  such  times  and  places,  and  in  such  manner, 
as  shall  be  determined  by  said  legislative  authority ;  the  pro- 
ceeds of  said  bonds,  when  sold,  to  be  payable  immediately 
upon  such  terms  or  conditions  as  said  legislative  body  may 
determine,  to  the  treasurer  of  said  Panama-Pacific  Inter- 
national Exposition  Company,  upon  demands  of  said  treas- 
urer of  said  exposition  company,  without  the  necessity  of 
the  approval  of  such  demands  by  other  authority,  than  said 
legislative  authority  of  Alameda  county,  the  same  to  be  used 
and  disbursed  by  said  Panama-Pacific  International  Exposi- 
tion Company  for  the  purposes  of  such  exposition,  under 
the  direction  and  control  of  said  exposition  company;  and 
the  legislative  authority  of  said  county  of  Alameda  is  hereby 
empoAvered  and  directed  to  levy  a  special  tax  on  all  taxable 
property  in  said  county  each  year  after  the  issue  of  said 
bonds  to  raise  an  amount  to  pay  the  interest  on  said  bonds 
as  the  same  become  due,  and  to  create  a  sinking  fund  to  pay 
the  principal  thereof  when  the  same  shall  become  due. 
[Amendment  adopted  November  3,  1914.] 

Sec.  19.  Any  municipal  corporation  may  establish  and 
operate  public  works  for  supplying  its  inhabitants  with 
light,  water,  power,  heat,  transportation,  telephone  service 
or  other  means  of  communication.  Such  works  may  be  ac- 
quired by  original  construction  or  by  the  purchase  of  exist- 
ing works,  including  their  franchises,  or  both.  Persons  or 
corporations  may  establish  and  operate  works  for  supplying 


85  CORPORATIONS. 

the  inhabitants  with  such  services  upon  such  conditions  and 
under  such  regulations  as  the  muncipality  may  prescribe 
under  its  organic  law,  on  condition  that  the  municipal  gov- 
ernment shall  have  the  right  to  regulate  the  charges  thereof. 
A  municipal  corporation  may  furnish  such  services  to  in- 
habitants outside  its  boundaries ;  provided,  that  it  shall  not 
furnish  any  service  to  the  inhabitants  of  any  other  munici- 
pality owning  or  operating  works  supplying  the  same  ser- 
vice to  such  inhabitants,  without  the  consent  of  such  other 
municipality,  expressed  by  ordinance.  [Amendment  adopted 
October  10,  1911.] 

ARTICLE  XII. 

COEPOEATIONS. 

Section  1.  Corporations  may  be  formed  under  general 
laws,  but  shall  not  be  created  by  special  act.  All  laws  now 
in  force  in  the  state  concerning  corporations,  and  all  laws 
that  may  be  hereafter  passed  pursuant  to  this  section,  may 
be  altered  from  time  to  time  or  repealed. 

Sec.  2.  Dues  from  corporations  shall  be  secured  by  such 
individual  liability  of  the  corporators  and  other  means  as 
may  be  prescribed  by  law. 

Sec.  3.  Each  stockholder  of  a  corporation,  or  joint-stock 
association,  shall  be  individually  and  personally  liable  for 
such  proportion  of  all  its  debts  and  liabilities  contracted 
or  incurred,  during  the  time  he  was  a  stockholder,  as  the 
amount  of  stock  or  shares  OAvned  by  him  bears  to  the  whole 
of  the  subscribed  capital  stock,  or  shares  of  the  corporation 
or  association.  The  directors  or  trustees  of  corporations 
and  joint-stock  associations  shall  be  jointly  and  severally 
liable  to  the  creditors  and  stockholders  for  all  moneys  em- 
bezzled or  misappropriated  by  the  officers  of  such  corpora- 
tion or  joint-stock  association,  during  the  term  of  office  of 
such  director  or  trustee. 

Nothing  in  the  preceding  paragraph  of  this  section  shall 
be  held  to  apply  to  any  exposition  company  organized  to 
promote  and  carry  on  any  international  exposition  or 
world's  fair  within  the  state  of  California,  and  the  liability 


Art.  XII,  §§  4-7         CONSTITUTION  OF  1879.  86 

of  stockholders  in  any  such  exposition  company  shall  be  and 
the  same  is  hereby  limited  to  an  amount  not  exceeding  the 
par  value  of  the  stock  of  said  corporation  subscribed  for  by 
such  stockholders,  [Amendment  adopted  November  3, 
1908.] 

Sec.  4.  The  term  "corporation,"  as  used  in  this  article, 
shall  be  construed  to  include  all  associations  and  joint-stock 
companies  having  any  of  the  powers  or  privileges  of  cor- 
porations not  possessed  by  individuals  or  partnerships,  and 
all  corporations  shall  have  the  right  to  sue  and  be  subject  to 
be  sued,  in  all  courts,  in  like  cases  as  natural  persons. 

Sec.  5.  The  legislature  shall  have  no  power  to  pass  any 
act  granting  any  charter  for  banking  purposes,  but  corpora- 
tions or  associations  may  be  formed  for  such  purposes  under 
general  laws,  and  the  legislature  shall  provide  for  the  classi- 
fication of  cities  and  towns  by  population  for  the  purpose  of 
regulating  the  business  of  banking.  No  corporation,  asso- 
ciation, or  individual  shall  issue  or  put  in  circulation,  as 
money,  anything  but  the  laAvful  money  of  the  United  States, 
[Amendment  adopted  November  8,  1910.] 

Sec.  6.  All  existing  charters,  grants,  franchises,  special 
or  exclusive  privileges,  under  which  an  actual  and  bona  fide 
organization  shall  not  have  taken  place,  and  business  been 
commenced  in  good  faith,  at  the  time  of  the  adoption  of  this 
Constitution,  shall  thereafter  have  no  validity. 

Sec.  7.  The  legislature  shall  not  extend  any  franchise  or 
charter,  nor  remit  the  forfeiture  of  any  franchise  or  charter 
of  any  quasi-public  corporation  now  existing  or  which  shall 
hereafter  exist  under  the  laws  of  this  state.  The  term  of 
existence  of  any  other  corporation  now  or  hereafter  existing 
under  the  laws  of  this  state,  may  be  extended  at  any  time 
prior  to  the  expiration  of  its  corporate  existence,  for  a 
period  not  exceeding  fifty  years  from  the  date  of  such  ex- 
tension, by  the  vote  or  w^ritten  consent  of  stockholders  rep- 
resenting two-thirds  of  its  capital  stock  or  of  two-thirds  of 
the  members  thereof.  A  certificate  of  such  vote  or  consent 
shall  be  signed  and  sworn  to  by  the  president  and  secretary, 
and  by  a  majority  of  the  directors  of  the  corporation  and 


87  CORPORATIONS.  Art.  XII,  §§  8-12 

filed  and  certified  in  the  manner  and  upon  payment  of  fees 
required  by  law  for  filing  and  certifying  articles  of  incor- 
poration, and  thereupon  the  terms  of  the  corporation  shall 
be  extended  for  the  period  specified  in  such  certificate,  and 
such  corporation  shall  thereafter  pay  all  annual  or  other 
fees  required  by  law  to  be  paid  by  corporations.  [Amend- 
ment adopted  November  3,  1908.] 

Sec.  8.  The  exercise  of  the  right  of  eminent  domain  shall 
never  be  so  abridged  or  construed  as  to  prevent  the  legisla- 
ture from  taking  the  property  and  franchises  of  incor- 
porated companies  and  subjecting  them  to  public  use  the 
same  as  the  property  of  individuals,  and  the  exercise  of  the 
police  power  of  the  state  shall  never  be  so  abridged  or  con- 
strued as  to  permit  corporations  to  conduct  their  business  in 
such  manner  as  to  infringe  the  rights  of  individuals  or  the 
general  well-being  of  the  state. 

Sec.  9.  No  corporation  shall  engage  in  any  business  other 
than  that  expressly  authorized  in  its  charter  or  the  law  un- 
der which  it  may  have  been  or  may  hereafter  be  organized ; 
nor  shall  it  hold  for  a  longer  period  than  five  years  any  real 
estate  except  such  as  may  be  necessary  for  carrying  on  its 
business. 

Sec.  10.  The  legislature  shall  not  pass  any  laws  permit- 
ting the  leasing  or  alienation  of  any  franchise,  so  as  to  re- 
lieve the  franchise  or  property  held  thereunder  from  the 
liabilities  of  the  lessor  or  grantor,  lessee  or  grantee,  con- 
tracted or  incurred  in  the  operation,  use,  or  enjoyment  of 
such  franchise  or  any  of  its  privileges. 

Sec.  11.  No  corporation  shall  issue  stock  or  bonds,  except 
for  money  paid,  labor  done,  or  property  actually  received, 
and  all  fictitious  increase  of  stock  or  indebtedness  shall  be 
void.  The  stock  and  bonded  indebtedness  of  corporations 
shall  not  be  increased,  except  in  pursuance  of  general  law, 
nor  without  the  consent  of  the  persons  holding  the  larger 
amount  in  value  of  the  stock,  at  a  meeting  called  for  that 
purpose,  giving  sixty  days'  public  notice,  as  may  be  pro- 
vided by  law. 

Sec.  12.  In  all  elections  for  directors  or  managers  of  cor- 
porations every  stockholder  shall  have  the  right  to  vote,  in 


Art.  XII,  §§  13-17     CONSTITUTION  OF  1879.  88 

person  or  by  proxy,  the  number  of  shares  of  stock  owned 
by  him,  for  as  many  persons  as  there  are  directors  or  man- 
agers to  be  elected,  or  to  cumulate  said  shares  and  give  one 
candidate  as  many  votes  as  the  number  of  directors  multi- 
plied by  the  number  of  his  shares  of  stock  shall  equal,  or  to 
distribute  them,  on  the  same  principle,  among  as  many  can- 
didates as  he  shall  think  fit ;  and  such  directors  or  managers 
shall  not  be  elected  in  any  other  manner,  except  that  mem- 
bers of  co-operative  societies  formed  for  agricultural,  mer- 
cantile, and  manufacturing  purposes  may  vote  on  all  ques- 
tions affecting  such  societies  in  manner  prescribed  by  law. 

Sec.  13,  The  state  shall  not,  in  any  manner,  loan  its 
credit,  nor  shall  it  subscribe  to  or  be  interested  in  the  stock 
of  any  company,  association,  or  corporation. 

Sec.  14.  Every  corporation  other  than  religious,  educa- 
tional, or  benevolent,  organized  or  doing  business  in  this 
state,  shall  have  and  maintain  an  office  or  place  in  this  state 
for  the  transaction  of  its  business,  where  transfers  of  stock 
shall  be  made,  and  in  Avhich  shall  be  kept,  for  inspection  by 
every  person  having  an  interest  therein,  and  legislative 
committees,  books  in  which  shall  be  recorded  the  amount  of 
capital  stock  subscribed,  and  by  whom;  the  names  of  the 
owners  of  its  stock,  and  the  amounts  owned  by  them, 
respectively;  the  amount  of  stock  paid  in,  and  by  whom; 
the  transfers  of  stock;  the  amount  of  its  assets  and  liabili- 
ties, and  the  names  and  places  of  residence  of  its  officers. 

Sec.  15.  No  corporation  organized  outside  the  limits  of 
this  state  shall  be  allowed  to  transact  business  within  this 
state  on  more  favorable  conditions  than  are  prescribed  by 
law  to  similar  corporations  organized  under  the  laws  of  this 
state. 

Sec.  16.  A  corporation  or  association  may  be  sued  in  the 
county  where  the  contract  is  made  or  is  to  be  performed,  or 
where  the  obligation  or  liability  arises  or  the  breach  occurs ; 
or  in  the  county  where  the  principal  place  of  business  of 
such  corporation  is  situated,  subject  to  the  power  of  the 
court  to  change  the  place  of  trial  as  in  other  cases. 

Sec.  17.  All  railroad,  canal,  and  other  transportation 
companies  are  declared  to  be  common  carriers,  and  subject 


89  CORPORATIONS.  Art.  XII,  §§  18-21 

to  legislative  control.  Any  association  or  corporation,  or- 
ganized for  the  purpose  under  the  laws  of  this  state,  shall 
have  the  right  to  connect  at  the  state  line  with  railroads  of 
other  states.  Every  railroad  company  shall  have  the  right 
with  its  road  to  intersect,  connect  with,  or  cross  any  other 
railroad,  and  shall  receive  and  transport  each  the  other's 
passengers,  tonnage,  and  cars,  without  delay  or  discrimina- 
tion. 

See.  18.  No  president,  director,  officer,  agent,  or  em- 
ployee of  any  railroad  or  canal  company  shall  be  interested 
directly  or  indirectly,  in  the  furnishing  of  material  or  sup- 
plies to  such  company,  nor  in  the  business  of  transportation 
as  a  common  carrier  of  freight  or  passengers  over  the  works 
owned,  leased,  controlled,  or  worked  by  such  company,  ex- 
cept such  interest  in  the  business  of  transportation  as  law- 
fully flows  from  the  ownership  of  stock  therein. 

Sec.  19.  No  railroad  or  other  transportation  company 
shall  grant  free  passes,  or  passes  or  tickets  at  a  discount, 
to  any  person  holding  any  office  of  honor,  trust,  or  profit  in 
this  state ;  and  the  acceptance  of  any  such  pass  or  ticket  by 
a  member  of  the  legislature,  or  any  public  officer,  other  than 
railroad  commissioner,  shall  work  a  forfeiture  of  his  office. 

Sec.  20.  No  railroad  or  other  transportation  company 
shall  raise  any  rate  of  charge  for  the  transportation  of 
freight  or  passengers  or  any  charge  connected  therewith  or 
incidental  thereto,  under  any  circumstances  whatsoever,  ex- 
cept upon  a  showing  before  the  railroad  commission  pro- 
vided for  in  this  Constitution,  that  such  increase  is  justified, 
and  the  decision  of  the  said  commission  upon  the  showing  so 
made  shall  not  be  subject  to  review  by  any  court  except 
upon  the  question  whether  such  decision  of  the  commission 
will  result  in  confiscation  of  property.  [Amendment  adopted 
October  10,  1911.] 

Sec.  21.  No  discrimination  in  charges  or  facilities  for 
transportation  shall  be  made  by  any  railroad  or  other  trans- 
portation company  between  places  or  persons,  or  in  the  fa- 
cilities for  the  transportation  of  the  same  classes  of  freight 
or  passengers  within  this  state.    It  shall  be  unlawful  for  any 


Art.  XII,  §  22  CONSTITUTION  OP  1879.  90 

railroad  or  other  transportation  company  to  charge  or  re- 
ceive any  greater  compensation  in  the  aggregate  for  the 
transportation  of  passengers  or  of  like  kind  of  property  for 
a  shorter  than  for  a  longer  distance  over  the  same  line  or 
route  in  the  same  direction,  the  shorter  being  included 
within  the  longer  distance,  or  to  charge  any  greater  com- 
pensation as  a  through  rate  than  the  aggregate  of  the  inter, 
mediate  rates ;  provided,  however,  that  upon  application  to 
the  railroad  commission  provided  for  in  this  Constitution 
such  company  may,  in  special  cases,  after  investigation,  be 
authorized  by  such  commission  to  charge  less  for  longer 
than  for  shorter  distances  for  the  transportation  of  persons 
or  property  and  the  railroad  commission  may  from  time  to 
time  prescribe  the  extent  to  which  such  company  may  be 
relieved  from  the  prohibition  to  charge  less  for  the  longer 
than  for  the  shorter  haul.  The  railroad  commission  shall 
have  power  to  authorize  the  issuance  of  excursion  and  com- 
mutation tickets  at  special  rates.  Nothing  herein  contained 
shall  be  construed  to  prevent  the  railroad  commission  from 
ordering  and  compelling  any  railroad  or  other  transporta- 
tion company  to  make  reparation  to  any  shipper  on  account 
of  the  rates  charged  to  said  shipper  being  excessive  or  dis- 
criminatory, provided  no  discrimination  will  result  from 
such  reparation.  [Amendment  adopted  October  10,  1911.] 
Sec.  22.  There  is  hereby  created  a  railroad  commission 
which  shall  consist  of  five  members  and  which  shall  be 
known  as  the  railroad  commission  of  the  state  of  California. 
The  commission  shall  be  appointed  by  the  governor  from  the 
state  at  large;  provided,  that  the  legislature,  in  its  discre- 
tion, may  divide  the  state  into  districts  for  the  purpose  of 
such  appointments,  said  districts  to  be  as  nearly  equal  in 
population  as  practicable ;  and  provided,  further,  that  the 
three  commissioners  in  office  at  the  time  this  section  takes 
effect  shall  serve  out  the  term  for  which  they  were  elected, 
and  that  two  additional  commissioners  shall  be  appointed  by 
the  governor  immediately  after  the  adoption  of  this  section, 
to  hold  office  during  the  same  term.  Upon  the  expiration  of 
said  term,  the  term  of  office  of  each  commissioner  thereafter 
shall  be  six  years,  except  the  commissioners  first  appointed 


91  coRPORuVTioNS.  Art.  XII,  §  22 

hereunder  after  such  expiration,  one  of  whom  shall  be  ap- 
pointed to  hold  office  until  January  1,  1917,  two  until  Janu- 
ary 1,  1919,  and  two  until  January  1,  1921.  Whenever  a 
vacancy  in  the  office  of  commissioner  shall  occur,  the  gover- 
nor shall  forthwith  appoint  a  qualified  person  to  fill  the 
same  for  the  unexpired  term.  Commissioners  appointed  for 
regular  terms  shall  at  the  beginning  of  the  term  for  which 
they  are  appointed,  and  those  appointed  to  fill  vacancies, 
shall,  immediately  upon  their  appointment,  enter  upon  the 
duties  of  their  offices.  The  legislature  shall  fix  the  salaries 
of  the  commissioners,  but  pending  such  action  the  salaries 
of  the  commissioners,  their  officers  and  employees  shall  re- 
main as  now  fixed  by  law.  The  legislature  shall  have  the 
power,  by  a  two-thirds  vote  of  all  members  elected  to  each 
house,  to  remove  any  one  or  more  of  said  commissioners 
from  office  for  dereliction  of  duty  or  corruption  or  incompe- 
tency. All  of  said  commissioners  shall  be  qualified  electors 
of  this  state,  and  no  person  in  the  employ  of  or  holding  any 
official  relation  to  any  person,  firm  or  corporation,  Avhich 
said  person,  firm  or  corporation  is  subject  to  regulation  by 
said  railroad  commission  and  no  person  owning  stock  or 
bonds  of  any  such  corporation  or  who  is  in  any  manner 
pecuniarily  interested  therein,  shall  be  appointed  to  or  hold 
the  office  of  railroad  commissioner.  No  vacancy  in  the  com- 
mission shall  impair  the  right  of  the  remaining  commission- 
ers to  exercise  all  the  powers  of  the  commission.  The  act 
of  a  majority  of  the  commissioners  when  in  session  as  a 
board  shall  be  deemed  to  be  the  act  of  commission ;  but  any 
investigation,  inquiry  or  hearing  which  the  commission  has 
power  to  undertake  or  to  hold  may  be  undertaken  or  held 
by  or  before  any  commissioner  designated  for  the  purpose 
by  the  commission,  and  every  order  made  by  a  commissioner 
so  designated,  pursuant  to  such  inquiry,  investigation  or 
hearing,  when  approved  or  confirmed  by  the  commission 
ordered  filed  in  its  office,  shall  be  deemed  to  be  the  order  of 
the  commission. 

Said  commission  shall  have  the  power  to  establish  rates  of 
charges  for  the  transportation  of  passengers  and  freight  by 
railroads  and  other  transportation  companies,  and  no  rail- 


Art.  XII,  §  22  CONSTITUTION  OF  1879.  92 

road  or  other  transportation  company  shall  charge  or  de- 
mand or  collect  or  receive  a  greater  or  less  or  different  com- 
pensation for  such  transportation  of  passengers  or  freight, 
or  for  any  service  in  connection  therewith,  between  the 
points  named  in  any  tariff  of  rates,  established  by  said  com- 
mission, than  the  rates,  fares  and  charges  which  are  speci- 
fied in  such  tariff.  The  commission  have  the  further  power 
to  examine  books,  records  and  papers  of  all  railroad  and 
other  transportation  companies ;  to  hear  and  determine  com- 
plaints against  railroad  and  other  transportation  companies ; 
to  issue  subpoenas  and  all  necessary  process  and  send  for 
persons  and  papers ;  and  the  commission  and  each  of  the 
commissioners  shall  have  the  power  to  administer  oaths, 
take  testimony  and  punish  for  contempt  in  the  same  manner 
and  to  the  same  extent  as  courts  of  record ;  the  commission 
may  prescribe  a  uniform  system  of  accounts  to  be  kept  by 
all  railroad  and  other  transportation  companies. 

No  provision  of  this  Constitution  shall  be  construed  as  a 
limitation  upon  the  authority  of  the  legislature  to  confer 
upon  the  railroad  commission  additional  powers  of  the  same 
kind  or  different  from  those  conferred  herein  which  are  not 
inconsistent  with  the  powers  conferred  upon  the  railroad 
commission  in  this  Constitution,  and  the  authority  of  the 
legislature  to  confer  such  additional  powers  is  expressly  de- 
clared to  be  plenary  and  unlimited  by  any  provision  of  this 
Constitution. 

The  provisions  of  this  section  shall  not  be  construed  to 
repeal  in  whole  or  in  part  any  existing  law  not  inconsistent 
herewith,  and  the  "Railroad  Commission  Act"  of  this  state 
approved  February  10,  1911,  shall  be  construed  with  refer- 
ence to  this  constitutional  provision  and  any  other  constitu- 
tional provision  becoming  operative  concurrently  herewith. 
And  the  said  act  shall  have  the  same  force  and  effect  as  if 
the  same  had  been  passed  after  the  adoption  of  this  provi- 
sion of  the  Constitution  and  of  all  other  provisions  adopted 
concurrently  herewith,  except  that  the  three  commissioners 
referred  to  in  said  act  shall  be  held  and  construed  to  be  the 
five  commissioners  provided  for  herein.  [Amendment 
adopted  October  10,  1911.] 


93  coRPORiVTiONS.  Art.  XII,  §  23 

Sec.  23.  Every  private  corporation,  and  every  individual 
or  association  of  individuals,  owning,  operating,  managing, 
or  controlling  any  commercial  railroad,  interurban  railroad, 
street  railroad,  canal,  pipe-line,  plant,  or  equipment,  or  any 
part  of  such  railroad,  canal,  pipe-line,  plant,  or  equipment 
within  this  state  for  the  transportation  or  conveyance  of 
passengers,  or  express  matter,  or  freight  of  any  kind,  in- 
cluding crude  oil,  or  for  the  transmission  of  telephone  or 
telegraph  messages,  or  for  the  production,  generation,  trans- 
mission, delivery  or  furnishing  of  heat,  light,  water  or  power 
or  for  the  furnishing  of  storage  or  wharfage  facilities, 
either  directly  or  indirectly,  to  or  for  the  public,  and  every 
common  carrier,  is  hereby  declared  to  be  a  public  utility 
subject  to  such  control  and  regulation  by  the  railroad  com- 
mission as  may  be  provided  by  the  legislature,  and  every 
class  of  private  corporations,  individuals,  or  associations  of 
individuals  hereafter  declared  by  the  legislature  to  be  public 
utilities  shall  likewise  be  subject  to  such  control  and  regula- 
tion. The  railroad  commission  shall  have  and  exercise  such 
power  and  jurisdiction  to  supervise  and  regulate  public 
utilities,  in  the  state  of  California,  and  to  fix  the  rates  to  be 
charged  for  commodities  furnished,  or  services  rendered  by 
public  utilities  as  shall  be  conferred  upon  it  by  the  legisla- 
ture, and  the  right  of  the  legislature  to  confer  powers  upon 
the  railroad  commission  respecting  public  utilities  is  hereby 
declared  to  be  plenary  and  to  be  unlimited  by  any  provision 
of  this  Constitution.  From  and  after  the  passage  by  the 
legislature  of  laws  conferring  powers  upon  the  railroad  com- 
mission respecting  public  utilities,  all  powers  respecting 
such  public  utilities  vested  in  boards  of  supervisors,  or  mu- 
nicipal councils,  or  other  governing  bodies  of  the  several 
counties,  cities  and  counties,  cities  and  towns,  in  this  state, 
or  in  any  commission  created  by  law  and  existing  at  the 
time  of  the  passage  of  such  laws,  shall  cease  so  far  as  such 
powers  shall  conflict  with  the  powers  so  conferred  upon  the 
railroad  commission ;  provided,  however,  that  this  section 
shall  not  affect  such  powers  of  control  over  public  utilities 
as  relate  to  the  making  and  enforcement  of  local,  police, 
sanitary  and  other  regulations,  other  than  the  fixing  of  rates, 


Art.  XII,  §§  23a,  24    constitution  of  1879.  94 

vested  in  any  city  and  county  or  incorporated  city  or  town 
as,  at  an  election  to  be  held  pursuant  to  law,  a  majority  of 
the  qualified  electors  of  such  city  and  county,  or  incor- 
porated city  or  town,  voting  thereon,  shall  vote  to  retain, 
and  until  such  election  such  powers  shall  continue  unim- 
paired ;  but  if  the  vote  so  taken  shall  not  favor  the  continua- 
tion of  such  powers  they  shall  thereafter  vest  in  the  railroad 
commission  as  provided  by  law ;  and  provided,  further,  that 
where  any  such  city  and  county,  or  incorporated  city  or 
town,  shall  have  elected  to  continue  any  of  its  powers  to 
make  and  enforce  such  local,  police,  sanitary  and  other 
regulations,  other  than  the  fixing  of  rates,  it  may,  by  vote 
of  a  majority  of  its  qualified  electors  voting  thereon,  there- 
after surrender  such  powers  to  the  railroad  commission  in  the 
manner  prescribed  by  the  legislature  ;  and  provided,  further, 
that  this  section  shall  not  affect  the  right  of  any  city  and 
county  or  incorporated  city  or  town,  to  grant  franchises  for 
public  utilities  upon  the  terms  and  conditions  and  in  the 
manner  prescribed  by  law.  Nothing  in  this  section  shall  be 
construed  as  a  limitation  upon  any  power  conferred  upon 
the  railroad  commission  by  any  provision  of  this  Consti- 
tution now  existing  or  adopted  concurrently  herewith 
[Amendment  adopted  November  3,  1914.] 

Sec.  23a.  The  railroad  commission  shall  have  and  exer- 
cise such  power  and  jurisdiction  as  shall  be  conferred  upon 
it  by  the  legislature  to  fix  the  just  compensation  to  be  paid 
for  the  taking  of  any  property  of  a  public  utility  in  eminent 
domain  proceedings  by  the  state  or  any  county,  city  and 
county,  incorporated  city  or  town,  or  municipal  water  dis- 
trict, and  the  right  of  the  legislature  to  confer  such  powers 
upon  the  railroad  commission  is  hereby  declared  to  be 
plenary  and  to  be  unlimited  by  any  provision  of  this  Consti- 
tution. All  acts  of  the  legislature  heretofore  adopted,  which 
are  in  accordance  herewith,  are  hereby  confirmed  and  de- 
clared valid.     [New  section  adopted  November  3,  1914.] 

Sec.  24.  The  legislature  shall  pass  all  laws  necessary  for 
the  enforcement  of  the  provisions  of  this  article. 


95  REVENUE  AND   TAXATION.  Art.  XIII,  §  1 

ARTICLE  XIII. 

REVENUE    AND   TAXATION. 

Section  1.  All  property  in  the  state  except  as  otherwise 
in  this  Constitution  provided,  not  exempt  under  the  laws  of 
the  United  States,  shall  be  taxed  in  proportion  to  its  value, 
to  be  ascertained  as  provided  by  law,  or  as  hereinafter  pro- 
vided. The  word  "property,"  as  used  in  this  article  and  sec- 
tion, is  hereby  declared  to  include  moneys,  credits,  bonds, 
stocks,  dues,  franchises,  and  all  other  matters  and  things, 
real,  personal,  and  mixed,  capable  of  private  ownership ; 
provided,  that  a  mortgage,  deed  of  trust,  contract,  or  other 
obligation  by  which  a  debt  is  secured  when  land  is  pledged 
as  security  for  the  payment  thereof,  together  Avith  the 
money  represented  by  such  debt,  shall  not  be  considered 
propcrtj'  subject  to  taxation ;  and  further  provided,  that 
property  used  for  free  public  libraries  and  free  museums, 
growing  crops,  property  used  exclusively  for  public  schools,* 
and  such  as  may  belong  to  the  United  States,  this  state,  or 
to  any  county,  city  and  county,  or  municipal  corporation 
within  this  state  shall  be  exempt  from  taxation,  except  such 
lands  and  the  improvements  thereon  located  outside  of  the 
county,  city  and  county,  or  municipal  corporation  owning 
the  same  as  were  subject  to  taxation  at  the  time  of  the  ac- 
quisition of  the  same  by  said  county,  city  and  county,  or  mu- 
nicipal corporation ;  provided,  that  no  improvements  of  any 
character  whatever  constructed  by  any  county-,  city  and 
county  or  municipal  corporation  shall  be  subject  to  taxation. 
All  lands  or  improvements  thereon,  belonging  to  any  county, 
city  and  county,  or  municipal  corporation,  not  exempt  from 
taxation,  shall  be  assessed  by  the  assessor  of  the  county,  city 
and  county,  or  municipal  corporation  in  which  said  lands  or 
improvements  are  located,  and  said  assessment  shall  be  sub- 
ject to  review,  equalization  and  adjustment  by  the  state 
board  of  equalization.  The  legislature  may  provide,  ex- 
cept in  the  case  of  credits  secured  by  mortgage  or  trust 
deed,  for  a  deduction  from  credits  of  del)ts  due  to  bona  fide 
residents  of  this  state.  [Amendment  adopted  November  3, 
1914.1 


Art.  XIII,  §§  114-la     CONSTITUTION  OF  1879.  9G 

Sec.  ll^.  The  property  to  the  amount  of  one  thousand 
dollars  of  every  resident  in  this  state  who  has  served  in  the 
army,  navy,  marine  corps,  or  revenue  marine  service  of  the 
United  States  in  time  of  war,  and  received  an  honorable 
discharge  therefrom;  or  lacking  such  amount  of  property 
in  his  own  name,  so  much  of  the  property  of  the  wife  of  any 
such  person  as  shall  be  necessary  to  equal  said  amount ;  and 
property  to  the  amount  of  one  thousand  dollars  of  the 
widow  resident  in  this  state,  or  if  there  be  no  such  widow, 
of  the  Avidowed  mother  resident  in  this  state,  of  every  person 
who  has  so  served  and  has  died  either  during  his  term  of 
service  or  after  receiving  honorable  discharge  from  said 
service ;  and  the  property  to  the  amount  of  one  thousand 
dollars  of  pensioned  widows,  fathers,  and  mothers,  resident 
in  this  state,  of  soldiers,  sailors,  and  marines  who  served  in 
the  army,  navy,  or  marine  corps,  or  revenue  marine  service 
of  the  United  States,  shall  be  exempt  from  taxation;  pro- 
vided, that  this  exemption  shall  not  apply  to  any  person 
named  herein  owning  property  of  the  value  of  five  thousand 
dollars  or  more,  or  where  the  wife  of  such  soldier  or  sailor 
owns  property  of  the  value  of  five  thousand  dollars  or  more. 
No  exemption  shall  be  made  under  the  provisions  of  this  act 
of  the  property  of  a  person  who  is  not  a  legal  resident  of 
this  state.      [New  section  adopted  October  10,  1911.] 

Sec.  iy2.  All  buildings,  and  so  much  of  the  real  property 
on  which  they  are  situated  as  may  be  required  for  the  con- 
venient use  and  occupation  of  said  buildings,  Avhen  the  same 
are  used  solely  and  exclusively  for  religious  worship  shall 
be  free  from  taxation;  provided,  that  no  building  so  used 
which  may  be  rented  for  religious  purposes  and  rent  re- 
ceived by  the  owner  therefor,  shall  be  exempt  from  taxa- 
tion.    [New  section  adopted  November  6,  1900.] 

Sec.  1%.  All  bonds  hereafter  issued  by  the  state  of  Cali- 
fornia, or  by  any  county,  city  and  county,  municipal  cor- 
poration, or  district  (including  school,  reclamation,  and  ir- 
rigation districts)  within  said  state,  shall  be  free  and  exempt 
from  taxation.     [New  section  adopted  November  4,  1902.] 

Sec.  la.  Any  educational  institution  of  collegiate  grade, 
within  the  state  of  California,  not  conducted  for  profit,  shall 


97  REVENUE  AND  TAXATION.      Art.  XIII,  §§  2-9 

hold  exempt  from  taxation  its  buildings  and  equipment,  its 
grounds  within  which  its  buildings  are  located,  not  exceed- 
ing one  hundred  acres  in  area,  its  securities  and  income  used 
exclusively  for  the  purposes  of  education.  [New  section 
adopted  November  3,  1914.] 

Sec.  2.  Land,  and  the  improvements  thereon,  shall  be 
separately  assessed.  Cultivated  and  uncultivated  land,  of 
the  same  quality,  and  similarly  situated,  shall  be  assessed 
at  the  same  value. 

Sec.  3.  Every  tract  of  land  containing  more  than  six 
hundred  and  forty  acres,  and  which  has  been  sectionized  by 
the  United  States  government,  shall  be  assessed,  for  the 
purposes  of  taxation,  by  sections  or  fractions  of  sections. 
The  legislature  shall  provide  by  law  for  the  assessment,  in 
small  tracts,  of  all  lands  not  sectionized  by  the  United  States 
government. 

Sec.  4.  All  vessels  of  more  than  fifty  tons  burden  regis- 
tered at  any  port  in  this  state  and  engaged  in  the  transpor- 
tation of  freight  or  passengers,  shall  be  exempt  from  taxa- 
tion except  for  state  purposes,  until  and  including  the  first 
day  of  January,  nineteen  hundred  thirty-five.  [New  sec- 
tion adopted  November  3,  1914.] 

Sec.  5.     [Repealed  November  6,  1906.] 

Sec.  6.  The  power  of  taxation  shall  never  be  surrendered 
or  suspended  by  any  grant  or  contract  to  which  the  state 
shall  be  a  party. 

Sec.  7.  The  legislature  shall  have  the  power  to  provide  by 
law  for  the  payment  of  all  taxes  on  real  property  by  install- 
ments. 

Sec.  8.  The  legislature  shall  by  law  require  each  tax- 
payer in  this  state  to  make  and  deliver  to  the  county  as- 
sessor, annually,  a  statement,  under  oath,  setting  forth  speci- 
fically all  the  real  and  personal  property  owned  by  such 
taxpayer,  or  in  his  possession,  or  under  his  control,  at  twelve 
o'clock  meridian  on  the  first  Monday  of  March. 

Sec.  9.  A  state  board  of  equalization,  consisting  of  one 
member  from  each  congressional  district  in  this  state,  as  the 

Constitution — 7 


Art.  XIII,  §§  10, 10l^    CONSTITUTION  OP  1879.  98 

same  existed  in  eighteen  hundred  and  seventy-nine,  shall  be 
elected  by  the  qualified  electors  of  their  respective  districts, 
at  the  general  election  to  be  held  in  the  year  one  thousand 
eight  hundred  and  eighty-six,  and  at  each  gubernatorial 
election  thereafter,  whose  term  of  office  shall  be  for  four 
years;  whose  duty  it  shall  be  to  equalize  the  valuation  of 
the  taxable  property  in  the  several  counties  of  the  state  for 
the  purposes  of  taxation.  The  controller  of  state  shall  be 
ex-officio  a  member  of  the  board.  The  boards  of  supervisors 
of  the  several  counties  of  the  state  shall  constitute  boards  of 
equalization  for  their  respective  counties,  whose  duty  it 
shall  be  to  equalize  the  valuation  of  the  taxable  property  in 
the  county  for  the  purpose  of  taxation ;  provided,  such  state 
and  county  boards  of  equalization  are  hereby  authorized  and 
empowered,  under  such  rules  of  notice  as  the  county  boards 
may  prescribe  as  to  county  assessments,  and  under  such 
rules  of  notice  as  the  state  board  may  prescribe  as  to  the 
action  of  the  state  board,  to  increase  or  lower  the  entire 
assessment-roll,  or  any  assessment  contained  therein,  so  as 
to  equalize  the  assessment  of  the  property  contained  in  said 
assessment-roll,  and  make  the  assessment  conform  to  the 
true  value  in  money  of  the  property  contained  in  said  roll ; 
provided,  that  no  board  of  equalization  shall  raise  any  mort- 
gage, deed  of  trust,  contract  or  other  obligation  by  which  a 
debt  is  secured,  money,  or  solvent  credits,  above  its  face 
value.  The  present  state  board  of  equalization  shall  con- 
tinue in  office  until  their  successors,  as  herein  provided  for, 
shall  be  elected  and  shall  qualify.  The  legislature  shall 
have  power  to  redistrict  the  state  into  four  districts,  as 
nearly  equal  in  population  as  practicable,  and  to  provide  for 
the  elections  of  members  of  said  board  of  equalization. 
[Amendment  adopted  November  4,  1884.] 

Sec.  10.  All  property,  except  as  otherwise  in  this  Con- 
stitution provided,  shall  be  assessed  in  the  county,  city, 
city  and  county,  town  or  township,  or  district  in  which  it  is 
situated,  in  the  manner  prescribed  by  law.  [Amendment 
adopted  November  8,  1910.] 

Sec.  101/2-  The  personal  property  of  every  householder 
to  the  amount  of  one  hundred  dollars,  the  articles  to  be  se- 


99  REVENUE  AND  TAXATION.      Art.  XIII,  §§  11-14 

lected  by  each  householder,  shall  be  exempt  from  taxation. 
[New  section  adopted  November  8,  1904.] 

Sec.  11.  Income  taxes  may  be  assessed  to  and  collected 
from  persons,  corporations,  joint-stock  associations,  or  com- 
panies resident  or  doing  business  in  this  state,  or  any  one  or 
more  of  them,  in  such  cases  and  amounts,  and  in  such  man- 
ner, as  shall  be  prescribed  by  law. 

Sec.  12.  No  poll  tax  or  head  tax  for  any  purpose  whatso- 
ever shall  be  levied  or  collected  in  the  state  of  California. 
[New  section  adopted  November  3,  1914.] 

Sec.  12%.  Fruit  and  nut  bearing  trees  under  the  age  of 
four  years  from  the  time  of  planting  in  orchard  form,  and 
grape  \anes  under  the  age  of  three  years  from  the  time  of 
planting  in  vineyard  form,  shall  be  exempt  from  taxation, 
and  nothing  in  this  article  shall  be  construed  as  subjecting 
such  trees  and  grape  vines  to  taxation.  [New  section 
adopted  November  6,  1894.] 

Sec.  13.  The  legislature  shall  pass  all  laws  necessary  to 
carry  out  the  provisions  of  this  article. 

Sec.  14.  Taxes  levied,  assessed  and  collected  as  herein- 
after provided  upon  railroads,  including  street  railways, 
whether  operated  in  one  or  more  counties ;  sleeping-car,  din- 
ing-car, drawing-room  car  and  palace-car  companies,  refrig- 
erator, oil,  stock,  fruit,  and  other  car-loaning  and  other  car 
companies  operating  upon  railroads  in  this  state ;  companies 
doing  express  business  on  any  railroad,  steamboat,  vessel 
or  stage  line  in  this  state;  telegraph  companies;  telephone 
companies;  companies  engaged  in  the  transmission  or  sale 
of  gas  or  electricity ;  insurance  companies ;  banks,  banking 
associations,  savings  and  loan  societies,  and  trust  companies ; 
and  taxes  upon  all  franchises  of  every  kind  and  nature, 
shall  be  entirely  and  exclusively  for  state  purposes,  and 
shall  be  levied,  assessed  and  collected  in  the  manner  herein- 
after provided.  The  word  "companies"  as  used  in  this  sec- 
tion shall  include  persons,  partnerships,  joint  stock  associa- 
tions, companies,  and  corporations. 

(a)  All  railroad  companies,  including  street  railways, 
whether  operated  in  one  or  more  counties;  all  sleeping-car, 


Art.  XIII,  §  14  CONSTITUTION  OF  1879.  100 

dining-car,  drawing-room  car,  and  palace-car  companies,  all 
refrigerator,  oil,  stock,  fruit,  and  other  car-loaning  and 
other  car  companies,  operating  upon  the  railroads  in  this 
state ;  all  companies  doing  express  business  on  any  railroad, 
steamboat,  vessel  or  stage  line  in  this  state;  all  telegraph 
and  telephone  companies ;  and  all  companies  engaged  in  the 
transmission  or  sale  of  gas  or  electricity  shall  annually  pay 
to  the  state  a  tax  upon  their  franchises,  roadways,  roadbeds, 
rails,  rolling  stock,  poles,  wires,  pipes,  canals,  conduits, 
rights  of  way,  and  other  property,  or  any  part  thereof  used 
exclusively  in  the  operation  of  their  business  in  this  state, 
computed  as  follows :  Said  tax  shall  be  equal  to  the  percent- 
ages hereinafter  fixed  upon  the  gross  receipts  from  opera- 
tion of  such  companies,  and  each  thereof  within  this  state. 
When  such  companies  are  operating  partly  within  and 
partly  without  this  state,  the  gross  receipts  within  this  state 
shall  be  deemed  to  be  all  receipts  on  business  beginning  and 
ending  Avithin  this  state,  and  a  proportion,  based  upon  the 
proportion  of  the  mileage  within  this  state  to  the  entire 
mileage  over  which  such  business  is  done,  of  receipts  on  all 
business  passing  through,  into,  or  out  of  this  state. 

The  percentages  above  mentioned  shall  be  as  follows:  On 
all  railroad  companies,  including  street  railways,  four  per 
cent;  on  all  sleeping-car,  dining-car,  drawing-room  car, 
palace-car  companies,  refrigerator,  oil,  stock,  fruit,  and 
other  car-loaning  and  other  car  companies,  three  per  cent; 
on  all  companies  doing  express  business  on  any  railroad, 
steamboat,  vessel  or  stage  line,  two  per  cent;  on  all  tele- 
graph and  telephone  companies,  three  and  one-half  per  cent ; 
on  all  companies  engaged  in  the  transmission  or  sale  of  gas 
or  electricity,  four  per  cent.  Such  taxes  shall  be  in  lieu  of 
all  other  taxes  and  licenses,  state,  county  and  municipal, 
upon  the  property  above  enumerated  of  such  companies  ex- 
cept as  otherwise  in  this  section  provided;  provided,  that 
nothing  herein  shall  be  construed  to  release  any  such  com- 
pany from  the  payment  of  any  amount  agreed  to  be  paid 
or  required  by  law  to  be  paid  for  any  special  privilege  or 
franchise  granted  by  any  of  the  municipal  authorities  of 
this  state. 


101  REVENUE  AND   TAXATION.  Art.  XIII,  §  14 

(b)  Every  insurance  company  or  association  doing  busi- 
ness in  this  state  shall  annually  pay  to  the  state  a  tax  of  one 
and  one-half  per  cent  upon  the  amount  of  the  gross  premiums 
received  upon  its  business  done  in  this  state,  less  return 
premiums  and  reinsurance  in  companies  or  associations  au- 
thorized to  do  business  in  this  state;  provided,  that  there 
shall  be  deducted  from  said  one  and  one-half  per  cent  upon 
the  gross  premiums  the  amount  of  any  county  and  munici- 
pal taxes  paid  by  such  companies  on  real  estate  owned  by 
them  in  this  state.  This  tax  shall  be  in  lieu  of  all  other 
taxes  and  licenses,  state,  county  and  municipal,  upon  the 
property  of  such  companies,  except  county  and  municipal 
taxes  on  real  estate,  and  except  as  otherwise  in  this  section 
provided;  provided,  that  when  by  the  laws  of  any  other 
state  or  country,  any  taxes,  fines,  penalties,  licenses,  fees, 
deposits  of  money,  or  of  securities,  or  other  obligations  or 
prohibitions,  are  imposed  on  insurance  companies  of  this 
state,  doing  business  in  such  other  state  or  country,  or  upon 
their  agents  therein,  in  excess  of  such  taxes,  fines,  penalties, 
licenses,  fees,  deposits  of  money,  or  of  securities,  or  other 
obligations  or  prohibitions,  imposed  upon  insurance  com- 
panies of  such  other  state  or  country,  so  long  as  such  laws 
continue  in  force,  the  same  obligations  and  prohibitions  of 
whatsoever  kind  may  be  imposed  by  the  legislature  upon 
insurance  companies  of  such  other  state  or  country  doing 
business  in  this  state. 

(c)  The  shares  of  capital  stock  of  all  banks,  organized 
under  the  laws  of  this  state,  or  of  the  United  States,  or  of 
any  other  state  and  located  in  this  state,  shall  be  assessed 
and  taxed  to  the  owners  or  holders  thereof  by  the  state 
board  of  equalization,  in  the  manner  to  be  prescribed  by 
law,  the  city  or  town  where  the  bank  is  located  and  not  else- 
Avhere.  There  shall  be  levied  and  assessed  upon  such  shares 
of  capital  stock  an  annual  tax,  payable  to  the  state,  of  one 
per  centum  upon  the  value  thereof.  The  value  of  each 
share  of  stock  in  each  bank,  except  such  as  are  in  liquida- 
tion, shall  be  taken  to  be  the  amount  paid  in  thereon,  to- 
gether with  its  pro  rata  of  the  accumulated  surplus  and  un- 
divided profits.     The  value  of  each  share  of  stock  in  each 


Art.  XIII,  §  14  CONSTITUTION  OF  1879.  102 

bank  which  is  in  liquidation  shall  be  taken  to  be  its  pro  rata 
of  the  actual  assets  of  such  bank.  This  tax  shall  be  in  lieu 
of  all  other  taxes  and  licenses,  state,  county  and  municipal, 
upon  such  shares  of  stock  and  upon  the  property  of  such 
banks,  except  county  and  municipal  taxes  on  real  estate  and 
except  as  otherwise  in  this  section  provided.  In  determin- 
ing the  value  of  the  capital  stock  of  any  bank  there  shall  be 
deducted  from  the  value,  as  defined  above,  the  value,  as  as- 
sessed for  county  taxes,  of  any  real  estate,  other  than  mort- 
gage interests  therein,  owned  by  such  bank  and  taxed  for 
county  purposes.  The  banks  shall  be  liable  to  the  state  for 
this  tax  and  the  same  shall  be  paid  to  the  state  by  them  on 
behalf  of  the  stockholders  in  the  manner  and  at  the  time 
prescribed  by  law,  and  they  shall  have  a  lien  upon  the 
shares  of  stock  and  upon  any  dividends  declared  thereon  to 
secure  the  amount  so  paid. 

The  moneyed  capital,  reserve,  surplus,  undivided  profits 
and  all  other  property  belonging  to  unincorporated  banks 
or  bankers  of  this  state,  or  held  by  any  bank  located  in  this 
state  which  has  no  shares  of  capital  stock,  or  employed  in 
this  state  by  any  branches,  agencies,  or  other  representa- 
tives of  any  banks  doing  business  outside  of  the  state  of 
California,  shall  be  likewise  assessed  and  taxed  to  such 
banks  or  bankers  by  the  said  board  of  equalization,  in  the 
manner  to  be  provided  by  law  and  taxed  at  the  same  rate 
that  is  levied  upon  the  shares  of  capital  stock  of  incorpo- 
rated banks,  as  provided  in  the  first  paragraph  of  this  subdi- 
vision. The  value  of  said  property  shall  be  determined  by 
taking  the  entire  property  invested  in  such  business,  to- 
gether with  all  the  reserve,  surplus,  and  undivided  profits, 
at  their  full  cash  value,  and  deducting  therefrom  the  value 
as  assessed  for  county  taxes  of  any  real  estate,  other  than 
mortgage  interests  therein,  owned  by  such  bank  and  taxed 
for  county  purposes.  Such  taxes  shall  be  in  lieu  of  all  other 
taxes  and  licenses,  state,  county  and  municipal,  upon  the 
property  of  the  banks  and  bankers,  mentioned  in  this  para- 
graph, except  county  and  municipal  taxes  on  real  estate 
and  except  as  otherwise  in  this  section  provided.  It  is  the 
intention  of  this  paragraph  that  all  moneyed  capital  and 


103  REVENUE  AND  TAXATION.  Art.  XIII,  §  14 

property  of  the  banks  and  bankers  mentioned  in  this  para- 
graph shall  be  assessed  and  taxed  at  the  same  rate  as  an 
incorporated  bank,  provided  for  in  the  first  paragraph  of 
this  subdivision.  In  determining  the  value  of  the  moneyed 
capital  and  property  of  the  banks  and  bankers  mentioned 
in  this  subdivision,  the  said  state  board  of  equalization  shall 
include  and  assess  to  such  banks  all  property  and  every- 
thing of  value  owned  or  held  by  them,  which  go  to  make 
up  the  value  of  the  capital  stock  of  such  banks  and  bankers, 
if  the  same  were  incorporated  and  had  shares  of  capital 
stock. 

The  word  "banks"  as  used  in  this  subdivision  shall  include 
banking  association,  savings  and  loan  societies  and  trust 
companies,  but  shall  not  include  building  and  loan  associa- 
tions. 

(d)  All  franchises,  other  than  those  expressly  provided 
for  in  this  section,  shall  be  assessed  at  their  actual  cash 
value,  in  the  manner  to  be  provided  by  law,  and  shall  be 
taxed  at  the  rate  of  one  per  centum  each  year,  and  the  taxes 
collected  thereon  shall  be  exclusively  for  the  benefit  of  the 
state. 

(e)  Out  of  the  revenues  from  the  taxes  provided  for  in 
this  section,  together  with  all  other  state  revenues,  there 
shall  be  first  set  apart  the  moneys  to  be  applied  by  the  state 
to  the  support  of  the  public  school  system  and  the  State 
University.  In  the  event  that  the  above-named  revenues 
are  at  any  time  deemed  insufficient  to  meet  the  annual  ex- 
penditures of  the  state,  including  the  above-named  expendi- 
tures for  educational  purposes,  there  may  be  levied,  in  the 
manner  to  be  provided  by  law,  a  tax,  for  state  purposes,  on 
all  the  property  in  the  state  including  the  classes  of  prop- 
erty enumerated  in  this  section,  sufficient  to  meet  the  defi- 
ciency. All  property  enumerated  in  subdivisions  a,  b,  and 
d  of  this  section  shall  be  subject  to  taxation,  in  the  manner 
provided  by  law,  to  pay  the  principal  and  interest  of  any 
bonded  indebtedness  created  and  outstanding  by  any  city, 
city  and  county,  county,  town,  township  or  district,  before 
the  adoption  of  this  section.  The  taxes  so  paid  for  prin- 
cipal and  interest  on  such  bonded  indebtedness  shall  be  de- 


Art.  XIII,  §  14  CONSTITUTION  OF  1879.  104 

ducted  from  the  total  amount  paid  in  taxes  for  state  pur- 
poses. 

(f)  All  the  provisions  of  this  section  shall  be  self-execut- 
ing and  the  legislature  shall  pass  all  laws  necessary  to  carry 
this  section  into  effect,  and  shall  provide  for  a  valuation  and 
assessment  of  the  property,  enumerated  in  this  section,  and 
shall  prescribe  the  duties  of  the  state  board  of  equalization 
and  any  other  officers  in  connection  with  the  administration 
thereof.  The  rates  of  taxation  fixed  in  this  section  shall  re- 
main in  force  until  changed  by  the  legislature,  two-thirds 
of  all  the  members  elected  to  each  of  the  two  houses  voting 
in  favor  thereof.  The  taxes  herein  provided  for  shall  be- 
come a  lien  on  the  first  Monday  in  March  of  each  year  after 
the  adoption  of  this  section  and  shall  become  due  and  pay- 
able on  the  first  Monday  in  July  thereafter.  The  gross  re- 
ceipts and  gross  premiums  herein  mentioned  shall  be  com- 
puted for  the  year  ending  the  thirty-first  day  of  December 
prior  to  the  levy  of  such  taxes  and  the  value  of  any  prop- 
erty mentioned  herein  shall  be  fixed  as  of  the  first  Monday 
in  March.  Nothing  herein  contained  shall  affect  any  tax 
levied  or  assessed  prior  to  the  adoption  of  this  section ;  and 
all  laws  in  relation  to  such  taxes  in  force  at  the  time  of  the 
adoption  of  this  section  shall  remain  in  force  until  changed 
by  the  legislature.  Until  the  year  1918  the  state  shall  re- 
imburse any  and  all  counties  which  sustain  loss  of  revenue 
by  the  withdrawal  of  railroad  property  from  county  taxa- 
tion for  the  net  loss  in  county  revenue  occasioned  by  the 
withdrawal  of  railroad  property  from  county  taxation.  The 
legislature  shall  provide  for  reimbursement  from  the  gen- 
eral funds  of  any  county  to  districts  therein  where  loss  is 
occasioned  in  such  districts  by  the  withdrawal  from  local 
taxation  of  property  taxed  for  state  purposes  only. 

(g)  No  injunction  shall  ever  issue  in  any  suit,  action  or 
proceeding  in  any  court  against  this  state  or  against  any 
officer  thereof  to  prevent  or  enjoin  the  collection  of  any  tax 
levied  under  the  provisions  of  this  section;  but  after  pay- 
ment action  may  be  maintained  to  recover  any  tax  illegally 
collected  in  such  manner  and  at  such  time  as  may  now  or 


105  WATER  AND   WATER  RIGHTS.      Art.  XIV,  §§  1,  2 

hereafter  be  provided  by  law,     [New  section  adopted  No- 
vember 8,  1910.] 

Note. — The  rates  fixed  in  the  above  section  were  changed  by  the 
legislature  in  1913  (act  approved  February  3,  1913),  and  in  1915  (act 
approved  January  28,  1915). 

ARTICLE  XIV. 

WATER  AND  WATER  RIGHTS. 

Section  1.  The  use  of  all  water  now  appropriated,  or  that 
may  hereafter  be  appropriated,  for  sale,  rental,  or  distribu- 
tion, is  hereby  declared  to  be  a  public  use,  and  subject  to 
the  regulation  and  control  of  the  state,  in  the  manner  to  be 
prescribed  by  law ;  provided,  that  the  rates  or  compensation 
to  be  collected  by  any  person,  company,  or  corporation  in 
this  state  for  the  use  of  water  supplied  to  any  city  and 
county,  or  city,  or  town,  or  the  inhabitants  thereof,  shall  be 
fixed,  annually,  by  the  board  of  supervisors,  or  city  and 
county,  or  city,  or  town  council,  or  other  governing  body  of 
such  city  and  county,  or  city,  or  town,  by  ordinance  or 
otherwise,  in  the  manner  that  other  ordinances  or  legisla- 
tive acts  or  resolutions  are  passed  by  such  body,  and  shall 
continue  in  force  for  one  year  and  no  longer.  Such  ordi- 
nances or  resolutions  shall  be  passed  in  the  month  of  Feb- 
ruary of  each  year,  and  take  effect  on  the  first  day  of  July 
thereafter.  Any  board  or  body  failing  to  pass  the  neces- 
sary ordinances  or  resolutions  fixing  water  rates,  where 
necessary,  within  such  time,  shall  be  subject  to  peremptory 
process  to  compel  action,  at  the  suit  of  any  party  interested, 
and  shall  be  liable  to  such  further  processes  and  penalties  as 
the  legislature  may  prescribe.  Any  person,  company,  or  cor- 
])orations  collecting  water  rates  in  any  city  and  county,  or 
city,  or  town  in  this  state,  otherwise  than  as  so  established, 
shall  forfeit  the  franchises  and  waterworks  of  such  person, 
company,  or  corporation  to  the  city  and  county,  or  city,  or 
town,  where  the  same  are  collected,  for  the  public  use. 

Sec.  2.  The  right  to  collect  rates  or  compensation  for  the 
use  of  water  supplied  to  any  county,  city  and  county,  or 


Art.  XVI,  §  1  CONSTITUTION  OF  1879.  106 

town,  or  the  inhabitants  thereof,  is  a  franchise,  and  cannot 
be  exercised  except  by  authority  of  and  in  the  manner  pre- 
scribed by  law. 

ARTICLE  XV. 

HARBOE  FRONTAGE,  ETC. 

Section  1.  The  right  of  eminent  domain  is  hereby  de- 
clared to  exist  in  the  state  to  all  frontages  on  the  navigable 
waters  of  this  state. 

Sec.  2.  No  individual,  partnership,  or  corporation,  claim- 
ing or  possessing  the  frontage  or  tidal  lands  of  a  harbor, 
bay,  inlet,  estuary,  or  other  navigable  water  in  this  state, 
shall  be  permitted  to  exclude  the  right  of  way  to  such  water 
whenever  it  is  required  for  any  public  purpose,  nor  to  de- 
stroy or  obstruct  the  free  navigation  of  such  water ;  and  the 
legislature  shall  enact  such  laws  as  will  give  the  most  liberal 
construction  to  this  provision,  so  that  access  to  the  navi- 
gable waters  of  this  state  shall  be  always  attainable  for  the 
people  thereof. 

Sec.  3.  All  tide-lands  within  two  miles  of  any  incorpo- 
rated city  or  town  in  this  state,  and  fronting  on  the  waters 
of  any  harbor,  estuary,  bay,  or  inlet,  used  for  the  purposes 
of  navigation,  shall  be  withheld  from  grant  or  sale  to  pri- 
vate persons,  partnerships,  or  corporations. 

ARTICLE  XVI. 

STATE  INDEBTEDNESS. 

Section  1.  The  legislature  shall  not,  in  any  manner,  cre- 
ate any  debt  or  debts,  liability  or  liabilities,  w^hich  shall, 
singly  or  in  the  aggregate  with  any  previous  debts  or  lia- 
bilities, exceed  the  sum  of  three  hundred  thousand  dollars, 
except  in  case  of  war  to  repel  invasion  or  suppress  insur- 
rection, unless  the  same  shall  be  authorized  by  law  for  some 
single  object  or  work  to  be  distinctly  specified  therein, 
which  law  shall  provide  ways  and  means,  exclusive  of  loans, 
for  the  payment  of  the  interest  of  such  debt  or  liability  as 
it  falls  due,  and  also  to  pay  and  discharge  the  principal  of 
such  debt  or  liability  within  seventy-five  years  of  the  time 


107  LAND  AND  HOMESTEAD  EXEMPTION.      Art.  XVII,  §§  1-3 

of  the  contracting  thereof,  and  shall  be  irrepealable  until 
the  principal  and  interest  thereon  shall  be  paid  and  dis- 
charged and  such  law  may  make  provision  for  a  sinking 
fund  to  pay  the  principal  of  such  debt  or  liability  to  com- 
mence at  a  time  after  the  incurring  of  such  debt  or  liability 
of  not  more  than  a  period  of  one-fourth  of  the  time  of  ma- 
turity of  such  debt  or  liability ;  but  no  such  law  shall  take 
effect  until,  at  a  general  election,  it  shall  have  been  sub- 
mitted to  the  people  and  shall  have  received  a  majority  of 
all  the  votes  cast  for  and  against  it  at  such  election ;  and  all 
moneys  raised  by  authority  of  such  law  shall  be  applied  only 
to  the  specific  object  therein  stated  or  to  the  payment  of  the 
debt  thereby  created,  and  such  law  shall  be  published  in  at 
least  one  newspaper  in  each  county,  or  city  and  county,  if 
one  be  published  therein,  throughout  the  state,  for  three 
months  next  preceding  the  election  at  which  it  is  submitted 
to  the  people.  The  legislature  may,  at  any  time  after  the 
approval  of  such  law  by  the  people,  if  no  debt  shall  have 
been  contracted  in  pursuance  thereof,  repeal  the  same. 
[Amendment  adopted  November  3,  1908.] 

ARTICLE  XVII. 
LAND  AND  HOMESTEAD  EXEMPTION. 

Section  1.  The  legislature  shall  protect,  by  law,  from 
forced  sale,  a  certain  portion  of  the  homestead  and  other 
property  of  all  heads  of  families. 

Sec.  2.  The  holding  of  large  tracts  of  land,  uncultivated 
and  unimproved,  by  individuals  or  corporations,  is  against 
the  public  interest,  and  should  be  discouraged  by  all  means 
not  inconsistent  with  the  rights  of  private  property. 

Sec.  3.  Lands  belonging  to  this  state,  which  are  suitable 
for  cultivation,  shall  be  granted  only  to  actual  settlers,  and 
in  quantities  not  exceeding  three  hundred  and  twenty  acres 
to  each  settler,  under  such  conditions  as  shall  be  prescribed 
by  law. 


Art.  XVIII,  §§  1,  2    CONSTITUTION  OF  1879.  108 

AETICLE  XVIII. 

AMENDING  AND  KEVISING  THE    CONSTITUTION. 

Section  1,  Any  amendment  or  amendments  to  this  Con- 
stitution may  be  proposed  in  the  senate  or  assembly,  and 
if  two-thirds  of  all  the  members  elected  to  each  of  the  two 
houses  shall  vote  in  favor  thereof,  such  proposed  amend- 
ment or  amendments  shall  be  entered  in  their  journals,  with 
the  yeas  and  nays  taken  thereon ;  and  it  shall  be  the  duty 
of  the  legislature  to  submit  such  proposed  amendment  or 
amendments  to  the  people  in  such  manner,  and  at  such  time, 
and  after  such  publication  as  may  be  deemed  expedient. 
Should  more  amendments  than  one  be  submitted  at  the  same 
election,  they  shall  be  so  prepared  and  distinguished,  by 
numbers  or  otherwise,  that  each  can  be  voted  on  separately. 
If  the  people  shall  approve  and  ratify  such  amendment  or 
amendments,  or  any  of  them,  by  a  majority  of  the  qualified 
electors  voting  thereon,  such  amendment  or  amendments 
shall  become  a  part  of  this  Constitution. 

Sec.  2,  "Whenever  two-thirds  of  the  members  elected  to 
each  branch  of  the  legislature  shall  deem  it  necessary  to 
revise  this  Constitution,  they  shall  recommend  to  the  elec- 
tors to  vote,  at  the  next  general  election,  for  or  against  a 
convention  for  that  purpose,  and  if  a  majority  of  the  elec- 
tors voting  at  such  election  on  the  proposition  for  a  con- 
vention shall  vote  in  favor  thereof,  the  legislature  shall, 
at  its  next  session,  provide  by  law  for  calling  the  same. 
The  convention  shall  consist  of  a  number  of  delegates  not 
to  exceed  that  of  both  branches  of  the  legislature,  who 
shall  be  chosen  in  the  same  manner,  and  have  the  same 
qualifications,  as  members  of  the  legislature.  The  delegates 
so  elected  shall  meet  within  three  months  after  their  elec- 
tion, at  such  place  as  the  legislature  may  direct.  At  a 
special  election  to  be  provided  for  by  law,  the  Constitution 
that  may  be  agreed  upon  by  such  convention  shall  be  sub- 
mitted to  the  people  for  their  ratification  or  rejection,  in 
such  manner  as  the  convention  may  determine.  The  re- 
turns of  such  election  shall,  in  such  manner  as  the  conven- 
tion shall  direct,  be  certified  to  the  executive  of  the  state, 


109  CHINESE.  Art.  XIX,  §§  1-4 

who  shall  call  to  his  assistance  the  controller,  treasurer,  and 
secretary  of  state,  and  compare  the  returns  so  certified  to 
him ;  and  it  shall  be  the  duty  of  the  executive  to  declare,  by 
his  proclamation,  such  Constitution  as  may  have  been  rati- 
fied by  a  majority  of  all  the  votes  cast  at  such  special  elec- 
tion, to  be  the  Constitution  of  the  state  of  California. 

AETICLE  XIX. 

CHINESE. 

Section  1.  The  legislature  shall  prescribe  all  necessary 
regulations  for  the  protection  of  the  state,  and  the  coun- 
ties, cities,  and  towns  thereof,  from  the  burdens  and  evils 
arising  from  the  presence  of  aliens  who  are  or  may  become 
vagrants,  paupers,  mendicants,  criminals,  or  invalids  af- 
flicted with  contagious  or  infectious  diseases,  and  from  aliens 
otherwise  dangerous  or  detrimental  to  the  well-being  or 
peace  of  the  state,  and  to  impose  conditions  upon  which  such 
persons  may  reside  in  the  state,  and  to  provide  the  means 
and  mode  of  their  removal  from  the  state,  upon  failure  or 
refusal  to  comply  with  such  conditions ;  provided,  that 
nothing  contained  in  this  section  shall  be  construed  to  im- 
pair or  limit  the  power  of  the  legislature  to  pass  such  police 
laws  or  other  regulations  as  it  may  deem  necessary. 

Sec.  2.  No  corporation  now  existing  or  hereafter  formed 
under  the  laws  of  this  state  shall,  after  the  adoption  of  this 
Constitution,  employ,  directly  or  indirectly,  in  any  capacity, 
any  Chinese  or  Mongolian.  The  legislature  shall  pass  such 
laws  as  may  be  necessary  to  enforce  this  provision. 

Sec.  3.  No  Chinese  shall  be  employed  on  any  state, 
county,  municipal,  or  other  public  work,  except  in  punish- 
ment for  crime. 

Sec.  4.  The  presence  of  foreigners  ineligible  to  become 
citizens  of  the  United  States  is  declared  to  be  dangerous  to 
the  well-being  of  the  state,  and  the  legislature  shall  dis- 
courage their  immigration  by  all  the  means  within  its  power. 
Asiatic  coolieism  is  a  form  of  human  slavery,  and  is  forever 
prohibited  in  this  state,  and  all  contracts  for  coolie  labor 


Art.  XX,  §§1-3  CONSTITUTION  OF  1879.  110 

shall  be  void.  All  companies  or  corporations,  whether 
formed  in  this  country  or  any  foreign  country,  for  the  im- 
portation of  such  labor,  shall  be  subject  to  such  penalties  as 
the  legislature  may  prescribe.  The  legislature  shall  dele- 
gate all  necessary  power  to  the  incorporated  cities  and 
towns  of  this  state  for  the  removal  of  Chinese  without  the 
limits  of  such  cities  and  towns,  or  for  their  location  within 
prescribed  portions  of  those  limits,  and  it  shall  also  provide 
the  necessary  legislation  to  prohibit  the  introduction  into 
this  state  of  Chinese  after  the  adoption  of  this  ConstitutioD. 
This  section  shall  be  enforced  by  appropriate  legislation. 

ARTICLE  XX. 

MISCELLANEOUS  SUBJECTS. 

Section  1.  The  city  of  Sacramento  is  hereby  declared 
to  be  the  seat  of  government  of  this  state,  and  shall  so  re- 
main until  changed  by  law ;  but  no  law  changing  the  seat 
of  government  shall  be  valid  or  binding  unless  the  same  be 
approved  and  ratified  by  a  majority  of  the  qualified  elec- 
tors of  the  state  voting  therefor  at  a  general  state  election, 
under  such  regulations  and  provisions  as  the  legislature,  by 
a  tAvo-thirds  vote  of  each  house,  may  provide,  submitting 
the  question  of  change  to  the  people. 

Sec.  2.  Any  citizen  of  this  state  who  shall,  after  the 
adoption  of  this  Constitution,  fight  a  duel  with  deadly 
weapons,  or  send  or  accept  a  challenge  to  fight  a  duel  with 
deadly  weapons  either  within  this  state  or  out  of  it,  or  who 
shall  act  as  second,  or  knowingly  aid  or  assist  in  any  man- 
ner those  thus  offending,  shall  not  be  allowed  to  hold  any 
ofifice  of  profit,  or  to  enjoy  the  right  of  suffrage  under  this 
Constitution. 

Sec.  3.  Members  of  the  legislature,  and  all  officers,  ex- 
ecutive and  judicial,  except  such  inferior  officers  as  may  be 
by  law  exempted,  shall,  before  they  enter  upon  the  duties 
of  their  respective  offices,  take  and  subscribe  the  following 
oath  or  affirmation: 

"I  do  solemnly  swear  (or  affirm,  as  the  case  may  be)  that 
I  will  support  the  Constitution  of  the  United  States  and  the 


Ill  MISCELLANEOUS  SUBJECTS.      Art.  XX,  §§  4-12 

Constitution  of  the  state  of  California,  and  that  I  will 
faithfully  discharge  the  duties  of  the  office  of accord- 
ing to  the  best  of  my  ability." 

And  no  other  oath,  declaration,  or  test  shall  be  required 
as  a  qualification  for  any  office  or  public  trust. 

Sec.  4.  All  officers  or  commissioners  whose  election  or 
appointment  is  not  provided  for  by  this  Constitution,  and 
all  officers  or  commissioners  whose  offices  or  duties  may 
hereafter  be  created  by  law,  shall  be  elected  by  the  people, 
or  appointed,  as  the  legislature  may  direct. 

Sec.  5.  The  fiscal  year  shall  commence  on  the  first  day 
of  July. 

Sec.  G.  Suits  may  be  brought  against  the  state  in  such 
manner  and  in  such  courts  as  shall  be  directed  by  law. 

Sec.  7.  No  contract  of  marriage,  if  otherwise  duly  made, 
shall  be  invalidated  for  want  of  conformity  to  the  require- 
ment of  any  religious  sect. 

Sec.  8.  All  property,  real  and  personal,  owned  by  either 
husband  or  wife,  before  marriage,  and  that  acquired  by 
either  of  them  afterward  by  gift,  devise,  or  descent,  shall  be 
their  separate  property. 

Sec.  9.  No  perpetuities  shall  be  allowed  except  for  elee- 
mosynary purposes. 

Sec.  10.  Every  person  shall  be  disqualified  from  holding 
any  office  of  profit  in  this  state  who  shall  have  been  con- 
victed of  having  given  or  offered  a  bribe  to  procure  his  elec- 
tion or  appointment. 

Sec.  11.  Laws  shall  be  made  to  exclude  from  office,  serv- 
ing on  juries,  and  from  the  right  of  suffrage,  persons  con- 
victed of  bribery,  perjury,  forgery,  malfeasance  in  office,  or 
other  high  crimes.  The  privilege  of  free  suffrage  shall  be 
supported  by  laws  regulating  elections,  and  prohibiting, 
under  adequate  penalties,  all  undue  influence  thereon  from 
power,  bribery,  tumult,  or  other  improper  practice. 

Sec.  12.  Absence  from  this  state,  on  business  of  the  state 
or  of  the  United  States,  shall  not  affect  the  question  of  resi- 
dence of  any  person. 


Art.  XX,  §§  13-16      CONSTITUTION  OF  1879,  112 

Sec.  13.  A  plurality  of  the  votes  given  at  any  election 
shall  constitute  a  choice  where  not  otherwise  directed  in 
this  Constitution ;  provided,  that  it  shall  be  competent  in  all 
charters  of  cities,  counties  or  cities  and  counties  framed 
under  the  authority  of  this  Constitution  to  provide  the  man- 
ner in  which  their  respective  elective  officers  may  be  elected 
and  to  prescribe  a  higher  proportion  of  the  vote  therefor; 
and  provided,  also,  that  it  shall  be  competent  for  the  legis- 
lature by  general  law  to  provide  the  manner  in  which  offi- 
cers of  municipalities  organized  or  incorporated  under  gen- 
eral laws  may  be  elected  and  to  prescribe  a  higher  propor- 
tion of  the  vote  therefor.  [Amendment  adopted  October 
10,  1911.] 

Sec.  14.  The  legislature  shall  provide,  by  law,  for  the 
maintenance  and  efficiency  of  a  state  board  of  health. 

Sec.  15.  Mechanics,  materialmen,  artisans,  and  laborers 
of  every  class  shall  have  a  lien  upon  the  property  upon 
which  they  have  bestowed  labor  or  furnished  material,  for 
the  value  of  such  labor  done  and  material  furnished  and 
the  legislature  shall  provide,  by  law,  for  the  speedy  and 
efficient  enforcement  of  such  liens. 

Sec.  16.  When  the  term  of  any  officer  or  commissioner 
is  not  provided  for  in  this  Constitution,  the  term  of  such 
officer  or  commissioner  may  be  declared  by  laAv ;  and  if  not 
so  declared,  such  officer  or  commissioner  shall  hold  his  posi- 
tion as  such  officer  or  commissioner  during  the  pleasure  of 
the  authority  making  the  appointment ;  but  in  no  case  shall 
such  term  exceed  four  years;  provided,  however,  that  in 
the  case  of  any  officer  or  employee  of  any  municipality  gov- 
erned under  a  legally  adopted  charter,  the  provisions  of 
such  charter  with  reference  to  the  tenure  of  office  or  the 
dismissal  from  office  of  any  such  officer  or  employee,  shall 
control;  and  provided,  further,  that  the  term  of  office  of 
any  person  heretofore  or  hereafter  appointed  to  hold  office 
or  employment  during  good  behavior  under  civil  service 
laws  of  the  state  or  of  any  political  division  thereof  shall 
not  be  limited  by  this  section.  [Amendment  adopted  Octo- 
ber 10,  1911.] 


113  MISCELLANEOUS  SUBJECTS.      Art.  XX,  §§  17-20 

Sec.  17.  The  time  of  service  of  all  laborers  or  workmen 
or  mechanics  employed  upon  any  public  works  of  the  state 
of  California,  or  of  any  county,  city  and  county,  city,  town, 
district,  township,  or  any  other  political  subdivision  thereof, 
whether  said  work  is  done  by  contract  or  otherwise,  shall 
be  limited  and  restricted  to  eight  hours  in  any  one  calendar 
day,  except  in  cases  of  extraordinary  emergency  caused  by 
fire,  flood,  or  danger  to  life  and  property,  or  except  to  work 
upon  public,  military,  or  naval  works  or  defenses  in  time  of 
war,  and  the  legislature  shall  provide  by  law  that  a  stipu- 
lation to  this  effect  shall  be  incorporated  in  all  contracts 
for  public  work,  and  prescribe  proper  penalties  for  the 
speedy  and  efficient  enforcement  of  said  law.  [Amendment 
adopted  November  4,  1902.] 

Sec.  17^2-  The  legislature  may,  by  appropriate  legisla- 
tion, provide  for  the  establishment  of  a  minimum  wage  for 
women  and  minors  and  may  provide  for  the  comfort,  health, 
safety  and  general  welfare  of  any  and  all  employees.  No 
provision  of  this  Constitution  shall  be  construed  as  a  limita- 
tion upon  the  authority  of  the  legislature  to  confer  upon 
any  commission  now  or  hereafter  created,  such  power  and 
authority  as  the  legislature  may  deem  requisite  to  carry  out 
the  provisions  of  this  section.  [New  section  adopted  No- 
vember 3,  1914.] 

Sec.  18.  No  person  shall,  on  account  of  sex,  be  disquali- 
fied from  entering  upon  or  pursuing  any  lawful  business, 
vocation,  or  profession. 

Sec.  19.  Nothing  in  this  Constitution  shall  prevent  the 
legislature  from  providing  by  laAv,  for  the  payment  of  the 
expenses  of  the  convention  framing  this  Constitution,  includ- 
ing the  per  diem  of  the  delegates  for  the  full  term  thereof. 

Sec.  20.  Elections  of  the  officers  provided  by  this  Con- 
stitution, except  at  the  election  in  the  year  eighteen  hun- 
dred and  seventy-nine,  shall  be  held  on  the  even-numbered 
years  next  before  the  expiration  of  their  respective  terms. 
The  terms  of  such  officers  shall  commence  on  the  first  Mon- 
day after  the  first  day  of  January  next  following  their 
election. 

Constitution — 8 


Art.  XXI,  §  1  CONSTITUTION  OF  1879,  114 

Sec.  21.  The  legislature  may  by  appropriate  legislation 
create  and  enforce  a  liability  on  the  part  of  all  employers 
to  compensate  their  employees  for  any  injury  incurred  by 
the  said  employees  in  the  course  of  their  employment,  irre- 
spective of  the  fault  of  either  party.  The  legislature  may 
provide  for  the  settlement  of  any  disputes  arising  under 
the  legislation  contemplated  by  this  section  by  arbitration, 
or  by  an  industrial  accident  board,  by  the  courts  or  by 
either,  any  or  all  of  these  agencies,  anything  in  this  Consti- 
tution to  the  contrary  notwithstanding.  [Amendment 
adopted  October  10,  1911.] 

ARTICLE  XXI. 

BOUNDARY. 

Section  1.  The  boundary  of  the  state  of  California  shall 
be  as  follows :  Commencing  at  the  point  of  intersection  of 
the  forty-second  degree  of  north  latitude  with  the  one  hun- 
dred and  twentieth  degree  of  longitude  west  from  Green- 
wich, and  running  south  on  the  line  of  said  one  hundred 
and  twentieth  degree  of  west  longitude  until  it  intersects 
the  thirty-ninth  degree  of  north  latitude ;  thence  running  in 
a  straight  line,  in  a  southeasterly  direction  to  the  River 
Colorado,  at  a  point  where  it  intersects  the  thirty-fifth  de- 
gree of  north  latitude ;  thence  down  the  middle  of  the  chan- 
nel of  said  river  to  the  boundary  line  between  the  United 
States  and  Mexico,  as  established  by  the  treaty  of  May 
thirtieth,  one  thousand  eight  hundred  and  forty-eight; 
thence  running  west  and  along  said  boundary  line  to  the 
Pacific  Ocean,  and  extending  therein  three  English  miles ; 
thence  running  in  a  northwesterly  direction  and  following 
the  direction  of  the  Pacific  coast  to  the  forty-second  degree 
of  north  latitude ;  thence  on  the  line  of  said  forty-second 
degree  of  north  latitude  to  the  place  of  beginning.  Also, 
including  all  the  islands,  harbors,  and  bays  along  and  adja- 
cent to  the  coast. 


115  SCHEDULE.  Art.  XXII,  §§  1-3 

ARTICLE  XXII. 

SCHEDULE. 

That  no  inconvenience  may  arise  from  the  alterations  and 
amendments  in  the  Constitution  of  this  state,  and  to  carry 
the  same  into  complete  effect,  it  is  hereby  ordained  and 
declared : 

Section  1.  That  all  laws  in  force  at  the  adoption  of  this 
Constitution,  not  inconsistent  therewith,  shall  remain  in 
full  force  and  effect  until  altered  or  repealed  by  the  legis- 
lature ;  and  all  rights,  actions,  prosecutions,  claims,  and  con- 
tracts of  the  state,  counties,  individuals,  or  bodies  corporate, 
not  inconsistent  therewith,  shall  continue  to  be  as  valid  as 
if  this  Constitution  had  not  been  adopted.  The  provisions 
of  all  laws  which  are  inconsistent  with  this  Constitution 
shall  cease  upon  the  adoption  thereof,  except  that  all  laws 
which  are  inconsistent  with  such  provisions  of  this  Consti- 
tution as  require  legislation  to  enforce  them  shall  remain  in 
full  force  until  the  first  day  of  July,  eighteen  hundred  and 
eighty,  unless  sooner  altered  or  repealed  by  the  legislature. 

Sec.  2.  That  all  recognizances,  obligations,  and  all  other 
instruments  entered  into  or  executed  before  the  adoption 
of  this  Constitution,  to  this  state,  or  to  any  subdivision 
thereof,  or  any  municipality  therein,  and  all  fines,  taxes, 
penalties,  and  forfeitures  due  or  owing  to  this  state,  or  any 
subdivision  or  municipality  thereof,  and  all  writs,  prosecu- 
tions, actions,  and  causes  of  action,  except  as  herein  other- 
wise provided,  shall  continue  and  remain  unaffected  by  the 
adoption  of  this  Constitution.  All  indictments  or  informa- 
tion which  shall  have  been  found,  or  may  hereafter  be 
found,  for  any  crime  or  offense  committed  before  this  Con- 
stitution takes  effect,  may  be  proceeded  upon  as  if  no 
change  had  taken  place,  except  as  otherwise  provided  in 
this  Constitution. 

Sec.  3.  All  courts  now  existing,  save  justices'  and  police 
courts,  are  hereby  abolished,  and  all  records,  books,  papers, 
and  proceedings  from  such  courts,  as  are  abolished  by  this 
Constitution^  shall  be  transferred,  on  the  first  day  of  Janu- 


Art.  XXII,  §§  4,  5     CONSTITUTION  OF  1879.  116 

ary,  eighteen  hundred  and  eighty,  to  the  courts  provided 
for  in  this  Constitution;  and  the  courts  to  which  the  same 
are  thus  transferred  shall  have  the  same  power  and  juris- 
diction over  them  as  if  they  had  been  in  the  first  instance 
commenced,  filed,  or  lodged  therein. 

Sec.  4.  The  superintendent  of  printing  of  the  state  of 
California,  shall,  at  least  thirty  days  before  the  first 
Wednesday  in  May,  A.  D.  eighteen  hundred  and  seventy- 
nine,  cause  to  be  printed  at  the  state  printing  office,  in  pam- 
phlet form,  simply  stitched,  as  many  copies  of  this  Consti- 
tution as  there  are  registered  voters  in  this  state,  and  mail 
one  copy  thereof  to  the  postoffice  address  of  each  registered 
voter;  provided,  any  copies  not  called  for  ten  days  after 
reaching  their  delivery  office,  shall  be  subject  to  general  dis- 
tribution by  the  several  postmasters  of  the  state.  The  gov- 
ernor shall  issue  his  proclamation,  giving  notice  of  the 
election  for  the  adoption  or  rejection  of  this  Constitution, 
at  least  thirty  days  before  the  said  first  Wednesday  of  May, 
eighteen  hundred  and  seventy-nine,  and  the  boards  of  super- 
visors of  the  several  counties  shall  cause  said  proclamation 
to  be  made  public  in  their  respective  counties,  and  general 
notice  of  said  election  to  be  given  at  least  fifteen  days  next 
before  said  election. 

Sec.  5.  The  superintendent  of  printing  of  the  state  of 
California  shall,  at  least  twenty  days  before  said  election, 
cause  to  be  printed  and  delivered  to  the  clerk  of  each  county 
in  this  state  five  times  the  number  of  properly  prepared  bal- 
lots for  said  election  that  there  are  voters  in  said  respective 
counties,  with  the  words  printed  thereon:  "For  the  New 
Constitution."  He  shall  likewise  cause  to  be  so  printed 
and  delivered  to  said  clerks  five  times  the  number  of  prop- 
erly prepared  ballots  for  said  election  that  there  are  voters 
in  said  respective  counties  with  the  words  printed  thereon : 
"Against  the  New  Constitution."  The  secretary  of  state  is 
hereby  authorized  and  required  to  furnish  the  superintend- 
ent of  state  printing  a  sufficient  quantity  of  legal  ballot 
paper,  now  on  hand,  to  carry  out  the  provisions  of  this 
section. 


117  SCHEDULE.  Art.  XXII,  §§  6-8 

Sec.  6.  The  clerks  of  the  several  counties  in  the  state 
shall,  at  least  five  days  before  said  election,  cause  to  be 
delivered  to  the  inspectors  of  elections,  at  each  election  pre- 
cinct or  polling  place,  in  their  respective  counties,  suitable 
registers,  poll  books,  forms  of  return,  and  an  equal  number 
of  the  aforesaid  ballots,  which  number,  in  the  aggregate, 
must  be  ten  times  greater  than  the  number  of  voters  in  the 
said  election  precincts  or  polling  places.  The  returns  of 
the  number  of  votes  cast  at  the  presidential  election  in  the 
year  eighteen  hundred  and  seventy-six  shall  serve  as  a  basis 
of  calculation  for  this  and  the  preceding  section ;  provided, 
that  the  duties  in  this  and  the  preceding  section  imposed 
upon  the  clerks  of  the  respective  counties  shall,  in  the  city 
and  county  of  San  Francisco,  be  performed  by  the  regis- 
trar of  voters  for  said  city  and  county. 

Sec.  7.  Every  citizen  of  the  United  States,  entitled  by 
law  to  vote  for  members  of  the  assembly  in  this  state,  shall 
be  entitled  to  vote  for  the  adoption  or  rejection  of  this  Con- 
stitution. 

Sec.  8.  The  officers  of  the  several  counties  of  this  state, 
whose  duty  it  is,  under  the  law,  to  receive  and  canvass  the 
returns  from  the  several  precincts  of  their  respective  coun- 
ties, as  well  as  of  the  city  and  county  of  San  Francisco,  shall 
meet  at  the  usual  places  of  meeting  for  such  purposes  on  the 
first  Monday  after  said  election.  If,  at  the  time  of  meeting, 
the  returns  from  each  precinct  in  the  county  in  which  the 
polls  were  opened  have  been  received,  the  board  must  then 
and  there  proceed  to  canvass  the  returns;  but  if  all  the  re- 
turns have  not  been  received,  the  canvass  must  be  post- 
poned from  time  to  time  until  all  the  returns  are  received, 
or  until  the  second  Monday  after  said  election,  when  they 
shall  proceed  to  make  out  returns  of  the  votes  cast  for  and 
against  the  new  Constitution;  and  the  proceedings  of  said 
board  shall  be  the  same  as  those  prescribed  for  like  boards 
in  the  case  of  an  election  for  governor.  Upon  the  comple- 
tion of  said  canvass  and  returns,  the  said  boards  shall  im- 
mediately certify  the  same,  in  the  usual  form,  to  the 
governor  of  the  state  of  California. 


Art.  XXII,  §§  9-12    CONSTITUTION  OF  1879.  118 

Sec.  9.  The  governor  of  the  state  of  California  shall,  as 
soon  as  the  returns  of  said  election  shall  be  received  by  him, 
or  within  thirty  days  after  said  election,  in  the  presence 
and  with  the  assistance  of  the  controller,  treasurer,  and  sec- 
retary of  state,  open  and  compute  all  the  returns  received 
of  votes  cast  for  and  against  the  new  Constitution.  If,  by 
such  examination  and  computation,  it  is  ascertained  that  a 
majority  of  the  whole  number  of  votes  cast  at  such  election 
is  in  favor  of  such  new  Constitution,  the  executive  of  this 
state  shall,  by  his  proclamation,  declare  such  new  Constitu- 
tion to  be  the  Constitution  of  the  state  of  California,  and 
that  it  shall  take  effect  and  be  in  force  on  the  days  herein- 
after specified. 

Sec.  10.  In  order  that  future  elections  in  this  state  shall 
conform  to  the  requirements  of  this  Constitution,  the  terms 
of  all  officers  elected  at  the  first  election  under  the  same 
shall  be,  respectively,  one  year  shorter  than  the  terms  as 
fixed  by  law  or  by  this  Constitution;  and  the  successors  of 
all  such  officers  shall  be  elected  at  the  last  election  before 
the  expiration  of  the  terms  as  in  this  section  provided.  The 
first  officers  chosen  after  the  adoption  of  this  Constitution 
shall  be  elected  at  the  time  and  in  the  manner  now  provided 
by  law.  Judicial  officers  and  the  superintendent  of  public 
instruction  shall  be  elected  at  the  time  and  in  the  manner 
that  state  officers  are  elected. 

Sec.  11.  All  laws  relative  to  the  present  judicial  system 
of  the  state  shall  be  applicable  to  the  judicial  system  created 
by  this  Constitution  until  changed  by  legislation. 

Sec.  12.  This  Constitution  shall  take  effect  and  be  in 
force  on  and  after  the  fourth  day  of  July,  eighteen  hundred 
and  seventy-nine,  at  twelve  o'clock  meridian,  so  far  as  the 
same  relates  to  the  election  of  all  officers,  the  commencement 
of  their  terms  of  office,  and  the  meeting  of  the  legislature. 
In  all  other  respects,  and  for  all  other  purposes,  this  Con- 
stitution shall  take  effect  on  the  first  day  of  January, 
eighteen  hundred  and  eighty,  at  twelve  o'clock  meridian. 


119  EECALL  OF  PUBLIC  OFFICIALS.      Art.  XXIII,  §  1 

ARTICLE  XXIII. 

RECALL    OF   PUBLIC    OFFICIALS. 

Section  1.  Every  elective  public  officer  of  the  state  of 
California  may  be  removed  from  office  at  any  time  by  the 
electors  entitled  to  vote  for  a  successor  of  such  incumbent, 
through  the  procedure  and  in  the  manner  herein  provided 
for,  which  procedure  shall  be  known  as  the  recall,  and  is  in 
addition  to  any  other  method  of  removal  provided  by  law. 

The  procedure  hereunder  to  effect  the  removal  of  an  in- 
cumbent of  an  elective  public  office  shall  be  as  follows :  A 
petition  signed  by  electors  entitled  to  vote  for  a  successor 
of  the  incumbent  sought  to  be  removed,  equal  in  number  to 
at  least  twelve  per  cent  of  the  entire  vote  cast  at  the  last 
preceding  election  for  all  candidates  for  the  office,  which  the 
incumbent  sought  to  be  removed  occupies  (provided  that  if 
the  officer  sought  to  be  removed  is  a  state  officer  who  is 
elected  in  any  political  subdivision  of  the  state,  said  petition 
shall  be  signed  by  electors  entitled  to  vote  for  a  successor 
to  the  incumbent  sought  to  be  removed,  equal  in  number  to 
at  least  twenty  per  cent  of  the  entire  vote  cast  at  the  last 
preceding  election  for  all  candidates  for  the  office  which 
the  incumbent  sought  to  be  removed  occupies)  demanding 
an  election  of  a  successor  to  the  officer  named  in  said  peti- 
tion, shall  be  addressed  to  the  secretary  of  state  and  filed 
with  the  clerk,  or  registrar  of  voters,  of  the  county  or  city 
and  county  in  which  the  petition  was  circulated;  provided, 
that  if  the  officer  sought  to  be  removed  was  elected  in  the 
state  at  large  such  petition  shall  be  circulated  in  not  less 
than  five  counties  of  the  state,  and  shall  be  signed  in  each 
of  such  counties  by  electors  equal  in  number  to  not  less  than 
one  per  cent  of  the  entire  vote  cast,  in  each  of  said  counties, 
at  said  election,  as  above  estimated.  Such  petition  shall 
contain  a  general  statement  of  the  grounds  on  which  the 
removal  is  sought,  which  statement  is  intended  solely  for 
the  information  of  the  electors,  and  the  sufficiency  of  which 
shall  not  be  open  to  review. 

When  such  petition  is  certified  as  is  herein  provided  to 
the  secretary  of  state,  he  shall  forthAvith  submit  the  said 


Art.  XXIII,  §  1  CONSTITUTION  OF  1879.  120 

petition,  together  with  a  certificate  of  its  sufficiency,  to  the 
governor,  who  shall  thereupon  order  and  fix  a  date  for 
holding  the  election,  not  less  than  sixty  days  nor  more  than 
eighty  days  from  the  date  of  such  certificate  of  the  secre- 
tary of  state. 

The  governor  shall  make  or  cause  to  be  made  publication 
of  notice  for  the  holding  of  such  election,  and  officers 
charged  by  law  with  duties  concerning  elections  shall  make 
all  arrangements  for  such  election  and  the  same  shall  be 
conducted,  returned,  and  the  result  thereof  declared,  in  all 
respects  as  are  other  state  elections.  On  the  official  ballot 
at  such  election  shall  be  printed,  in  not  more  than  two  hun- 
dred words,  the  reasons  set  forth  in  the  petition  for  de- 
manding his  recall.  And  in  not  more  than  three  hundred 
words  there  shall  also  be  printed,  if  desired  by  him,  the 
officer's  justification  of  his  course  in  office.  Proceedings  for 
the  recall  of  any  officer  shall  be  deemed  to  be  pending  from 
the  date  of  the  filing  with  any  county,  or  city  and  county 
clerk,  or  registrar  of  voters,  of  any  recall  petition  against 
such  officer ;  and  if  such  officer  shall  resign  at  any  time  sub- 
sequent to  the  filing  thereof,  the  recall  election  shall  be  held 
notwithstanding  such  resignation,  and  the  vacancy  caused 
by  such  resignation,  or  from  any  other  cause,  shall  be  filled 
as  provided  by  law,  but  the  person  appointed  to  fill  such 
vacancy  shall  hold  his  office  only  until  the  person  elected 
at  the  said  recall  election  shall  qualify. 

Any  person  may  be  nominated  for  the  office  which  is  to 
be  filled  at  any  recall  election  by  a  petition  signed  by  elec- 
tors, qualified  to  vote  at  such  recall  election,  equal  in  number 
to  at  least  one  per  cent  of  the  total  number  of  votes  cast 
at  the  last  preceding  election  for  all  candidates  for  the  office 
which  the  incumbent  sought  to  be  removed  occupies.  Each 
such  nominating  petition  shall  be  filed  with  the  secretary  of 
state  not  less  than  twenty-five  days  before  such  recall 
election. 

There  shall  be  printed  on  the  recall  ballot,  as  to  every 
officer  whose  recall  is  to  be  voted  on  thereat,  the  follow- 
ing question :  "Shall  (name  of  person  against  whom  the 
recall    petition    is    filed)    be    recalled    from    the    office    of 


121  RECALL  OF  PUBLIC  OFFICIALS.      Art.  XXIII,  §  1 

(title  of  office)  V  following  which  question  shall  be  the 
words  "Yes"  and  "No"  on  separate  lines,  with  a  blank  space 
at  the  right  of  each,  in  which  the  voter  shall  indicate, 
by  stamping  a  cross  (X),  his  vote  for  or  against  such 
recall.  On  such  ballots,  under  each  such  question,  there 
shall  also  be  printed  the  names  of  those  persons  who 
have  been  nominated  as  candidates  to  succeed  the  person 
recalled,  in  case  he  shall  be  removed  from  office  by  said 
recall  election;  but  no  vote  cast  shall  be  counted  for  any 
candidate  for  said  office  unless  the  voter  also  voted  on  said 
question  of  the  recall  of  the  person  sought  to  be  recalled 
from  said  office.  The  name  of  the  person  against  whom  the 
petition  is  filed  shall  not  appear  on  the  ballot  as  a  candidate 
for  the  office.  If  a  majority  of  those  voting  on  said  ques- 
tion of  the  recall  of  any  incumbent  from  office  shall  vote 
"No,"  said  incumbent  shall  continue  in  said  office.  If  a 
majority  shall  vote  "Yes,"  said  incumbent  shall  thereupon 
be  deemed  removed  from  such  office  upon  the  qualification 
of  his  successor.  The  canvassers  shall  canvass  all  votes  for 
candidates  for  said  office  and  declare  the  result  in  like  man- 
ner as  in  a  regular  election.  If  the  vote  at  any  such  recall 
election  shall  recall  the  officer,  then  the  candidate  who  has 
received  the  highest  number  of  votes  for  the  office  shall  be 
thereby  declared  elected  for  the  remainder  of  the  term.  In 
case  the  person  who  received  the  highest  number  of  votes 
shall  fail  to  qualify  Avithin  ten  days  after  receiving  the  cer- 
tificate of  election,  the  office  shall  be  deemed  vacant  and 
shall  be  filled  according  to  law. 

Any  recall  petition  may  be  presented  in  sections,  but  each 
section  shall  contain  a  full  and  accurate  copy  of  the  title 
and  text  of  the  petition.  Each  signer  shall  add  to  his  signa- 
ture his  place  of  residence,  giving  the  street  and  number, 
if  such  exist.  His  election  precinct  shall  also  appear  on  the 
paper  after  his  name.  The  number  of  signatures  appended 
to  each  section  shall  be  at  the  pleasure  of  the  person  solicit- 
ing signatures  to  the  same.  Any  qualified  elector  of  the 
state  shall  be  competent  to  solicit  such  signatures  within 
the  county,  or  city  and  county,  of  which  he  is  an  elector. 
Each  section  of  the  petition   shall  bear  the  name  of  the 


Art.  XXIII,  §  1        CONSTITUTION  OF  1879.  122 

county,  or  city  and  county,  in  which  it  is  circulated,  and 
only  qualified  electors  of  such  county  or  city  and  county 
shall  be  competent  to  sign  such  section.  Each  section  shall 
have  attached  thereto  the  affidavit  of  the  person  soliciting 
signatures  to  the  same  stating  his  qualifications  and  that 
all  the  signatures  to  the  attached  section  were  made  in  his 
presence  and  that  to  the  best  of  his  knowledge  and  belief 
each  signature  to  the  section  is  the  genuine  signature  of 
the  person  whose  name  it  purports  to  be ;  and  no  other  affi- 
davit, thereto  shall  be  required.  The  affidavit  of  any  per- 
son soliciting  signatures  hereunder  shall  be  verified  free  of 
charge  by  any  officer  authorized  to  administer  an  oath. 
Such  petition  so  verified  shall  be  prima  facie  evidence  that 
the  signatures  thereto  appended  are  genuine  and  that  the 
persons  signing  the  same  are  qualified  electors.  Unless  and 
until  it  is  otherwise  proven  upon  official  investigation,  it 
shall  be  presumed  that  the  petition  presented  contains  the 
signatures  of  the  requisite  number  of  electors.  Each  sec- 
tion of  the  petition  shall  be  filed  with  the  clerk,  or  registrar 
of  voters,  of  the  county  or  city  and  county  in  which  it  was 
circulated;  but  all  such  sections  circulated  in  any  county 
or  city  and  county  shall  be  filed  at  the  same  time.  Within 
twenty  days  after  the  date  of  filing  such  petition,  the  clerk, 
or  registrar  of  voters,  shall  finally  determine  from  the  rec- 
ords of  registration  what  number  of  qualified  electors  have 
signed  the  same ;  and,  if  necessary,  the  board  of  supervisors 
shall  allow  such  clerk  or  registrar  additional  assistants  for 
the  purpose  of  examining  such  petition  and  provide  for 
their  compensation.  The  said  clerk  or  registrar,  upon  the 
completion  of  such  examination,  shall  forthwith  attach  to 
such  petition  his  certificate,  properly  dated,  shoAving  the 
result  of  such  examination,  and  submit  said  petition,  except 
as  to  the  signatures  appended  thereto,  to  the  secretary  of 
state  and  file  a  copy  of  said  certificate  in  his  office.  Within 
forty  days  from  the  transmission  of  the  said  petition  and 
certificate  by  the  clerk  or  registrar  of  voters  to  the  secre- 
tary of  state,  a  supplemental  petition,  identical  with  the 
original  as  to  the  body  of  the  petition  but  containing 
supplemental  names,  may  be  filed  Avith  the  clerk  or  regis- 


123  RECALL  OF  PUBLIC  OFFICIALS.      Art.  XXIII,  §  1 

trar  of  voters,  as  aforesaid.  The  clerk  or  registrar  of 
voters  shall  within  ten  days  after  the  filing  of  such  sup- 
plemental petition  make  like  examination  thereof  as  of  the 
original  petition,  and  upon  the  conclusion  of  such  examina- 
tion shall  forthwith  attach  to  such  petition  his  certificate, 
properly  dated,  showing  the  result  of  such  examination,  and 
shall  forthwith  transmit  such  supplemental  petition,  except 
as  to  the  signatures  thereon,  together  with  his  said  certifi- 
cate, to  the  secretary  of  state. 

When  the  secretary  of  state  shall  have  received  from  one 
or  more  county  clerks,  or  registrars  of  voters,  a  petition 
certified  as  herein  provided  to  have  been  signed  by  the 
requisite  number  of  qualified  electors,  he  shall  forthwith 
transmit  to  the  county  clerk  or  registrar  of  voters  of  every 
county  or  city  and  county  in  the  state  a  certificate  showing 
such  fact;  and  such  clerk  or  registrar  of  voters  shall  there- 
upon file  said  certificate  for  record  in  his  office. 

A  petition  shall  be  deemed  to  be  filed  with  the  secretary 
of  state  upon  the  date  of  the  receipt  by  him  of  a  certificate 
or  certificates  showing  the  said  petition  to  be  signed  by  the 
requisite  number  of  electors  of  the  state. 

No  recall  petition  shall  be  circulated  or  filed  against  any 
officer  until  he  has  actually  held  his  office  for  at  least  six 
months;  save  and  except  it  may  be  filed  against  any  mem- 
ber of  the  state  legislature  at  any  time  after  five  days  from 
the  convening  and  organizing  of  the  legislature  after  his 
election. 

If  at  any  recall  election  the  incumbent  whose  removal  is 
sought  is  not  recalled,  he  shall  be  repaid  from  the  state 
treasury  any  amount  legally  expended  by  him  as  expenses 
of  such  election,  and  the  legislature  shall  provide  appropria- 
tion for  such  purpose,  and  no  proceedings  for  another  recall 
election  of  said  incumbent  shall  be  initiated  within  six 
months  after  such  election. 

If  the  governor  is  sought  to  be  removed  under  the  provi- 
sions of  this  article,  the  duties  herein  imposed  upon  him 
shall  be  performed  by  the  lieutenant-governor;  and  if  the 
secretary  of  state  is  sought  to  be  removed,  the  duties  herein 
imposed  upon  him  shall  be  performed  by  the  state  con- 


Art.  XXIII,  §  1        CONSTITUTION  OF  1879.  124 

troller;  and  the  duties  herein  imposed  upon  the  clerk  or 
registrar  of  voters,  shall  be  performed  by  such  registrar  of 
voters  in  all  eases  where  the  office  of  registrar  of  voters 
exists. 

The  recall  shall  also  be  exercised  by  the  electors  of  each 
county,  city  and  county,  city  and  town  of  the  state,  with 
reference  to  the  elective  officers  thereof,  under  such  pro- 
cedure as  shall  be  provided  by  law. 

Until  otherwise  provided  by  law,  the  legislative  body  of 
any  such  county,  city  and  county,  city  or  town  may  provide 
for  the  manner  of  exercising  such  recall  powers  in  such 
counties,  cities  and  counties,  cities  and  towns,  but  shall  not 
require  any  such  recall  petition  to  be  signed  by  electors 
more  in  number  than  twenty-five  per  cent  of  the  entire  vote 
cast  at  the  last  preceding  election  for  all  candidates  for  the 
office  which  the  incumbent  sought  to  be  removed  occupies. 
Nothing  herein  contained  shall  be  construed  as  affecting  or 
limiting  the  present  or  future  powers  of  cities  or  counties 
or  cities  and  counties  having  charters  adopted  under  the 
authority  given  by  the  Constitution. 

In  the  submission  to  the  electors  of  any  petition  proposed 
under  this  article  all  officers  shall  be  guided  by  the  general 
laws  of  the  state,  except  as  otherwise  herein  provided. 

This  article  is  self-executing,  but  legislation  may  be  en- 
acted to  facilitate  its  operation,  but  in  no  way  limiting  or 
restricting  the  provisions  of  this  article  or  the  powers  herein 
reserved.     [New  article;  adopted  October  10,  1911.] 

J.  P.  HOGE,  President. 

Attest :  Edwin  F.  Smith,  Secretary. 


125         MEMBERS  OF  THE  CONSTITUTIONAL  CONVENTION  OF  1879. 


MEMBERS  OF  THE  CONSTITUTIONAIj  CONVENTION  OF  1879. 


D.  W.  herrington, 

S.  G.  Hilborn, 

J.  R.  W.  Hitchcock, 

Sam  A.  Holmes, 

Volney  E.  Howard, 

W.  J.  Howard, 

W.  F.  Huestis, 

Win.  Procter  Hughey, 

G.  W.  Hunter, 

Daniel  Inman, 

George  A.  Johnson, 

L.  F.  Jones, 

Peter  J.  Joyce, 

John  J.  Kenny, 

J.  M.  Kelley, 

James  H.  Keyes, 

C.  K.  Kleine, 

T.  H.  Laine, 

K.  M.  Lampson, 

H.  W.  La  Rue, 

Henry  Larkin, 

David  Lewis, 

R.  Lavigne, 

J.  F.  Lindow, 

Jno.  Mansfield, 

J.  West  Martin, 

Edward  Martin, 

John  G.  McCallum, 

Rush  McComas, 

Thomas  McConnell, 

John  McCoy, 

Thomas  B.  McFarland, 

John  Fleming  McNutt, 

Wm.  S.  Moffatt, 

L.  D.  Morse, 

Hiram  Mills, 

W.  W.  Moreland, 

James  E.  Murphy, 

Edmond  Nason, 

Thorwald  Klaudius  Nelson, 

Henry  Neunaber, 

Chas.  C.  O'Donnell, 

George -Ohleyer, 

James  O'Sullivan, 

A.  P.  Overton, 

James  Martin  Porter, 


A.  R.  Andrews, 
James  J.  Ayres, 
Clitus  Barbour, 
Edward  Barry, 
James  N.  Barton, 
C.  J.  Beerstecher, 
Isaac  S.  Belcher, 
Peter  Bell, 
Marion  Biggs, 
E.  T.  Blackmer, 
.Josiah  Boucher, 
Joseph  C.  Brown, 
Saml.  B.  Burt, 
James  Caples, 
Aug.  H.  Chapman, 
J.  M.  Charles, 
John  D.  Condon, 
C.  W.  Cross, 
Hamlet  Davis, 
Jas.  E.  Dean, 
P.  T.  Dowling, 
Luke  D.  Doyle, 
W.  L.  Dudley, 
Jonathan  M.  Dudley, 
Presley  Dunlap, 
John  A.  Eagon, 
Henry  Edgerton, 
Thomas  H.  Estey, 
M.  M.  Estee, 
Edward  Evey, 
Simon  J.  Farrell, 
J.  A.  Filcher, 
Jacob  Richard  Freud, 
Abraham  Clark  Freeman, 
.T.  B.  Garvey, 

B.  B.  Glascock, 
•Joseph  C.  Gorman, 
W.  P.  Grace, 
William  J.  Graves, 
V.  A.  Gregg, 
Jno.  S.  Hager, 
John  B.  Hall, 
J.  E.  Hale, 
Thomas  Harrison, 
.Joel  A.  Harvey, 
T.  D.  Heiskell, 
Conrad  Herold, 

]SfQXE. — The  following  were  also  members  of  the  convention,  but  did  not 
sign  the  Constitution,  being  absent  on  the  day  when  it  was  adopted: 
Barnes,  Wm.  H.  L.;  Berry,  J.;  Boggs,  H.  C;  Campbell,  A.,  Jr,;  Casserly, 
Eugene;  Cowden,  D.  H.;  Crouch.  Robert;  Fawcett,  Eugene;  Finney,  Chas. 
G.,  Jr.;  Miller,  John  F.;  Noel,  Alonzo  E.;  Wilson,  Samuel  M. 


William  H.  Prouty, 
M.  R.  C.  PuUiam, 
Patrick  Reddy, 
Chas.  F.  Reed, 
Jas.  S.  Reynolds, 
Jno.  M.  Rhodes, 
Chas.  S.  Ringgold, 
Horace  C.  Rolfe, 
Geo.  W.  Schell, 
J.  Schomp, 
James  McM.  Shaf  ter, 
Rufus  Shoemaker, 
Benj.  Shurtleff, 
E.  6.  Smith, 
H.  W.  Smith, 
Geo.  Venable  Smith, 

E.  P.  Soule, 
John  C.  Stedman, 
Geo.  Steele, 

D.  C.  Stevenson, 
Chas.  V.  Stuart, 
W.  J.  Sweasey, 
Charles  Swenson, 
R.  S.  Swing, 
D.  S.  Terry, 
S.  B.  Thompson, 
W.  J.  Tinnin, 

F.  O.  Townsend, 
P.  B.  Tully, 

H.  K.  Turner, 
Daniel  Tuttle, 
A.  P.  Vacquerel, 
Walter  Van  Dyke, 
Wm.  Van  Voorhies, 
Jno.  Walker, 
Hugh  Walker, 
Byron  Waters, 
J.  V.  Webster, 
Joseph  R.  Weller, 
Patrick  M.  Wellin, 
John  P.  West, 
Wm.  F.  White, 
John  T.  Wickes, 
H.  C.  Wilson, 
Jos.  W.  Winans, 
N.  G.  Wvatt. 


CONSTITUTION 


OP   THE 


STATE  OF  CALIFORNIA 


Adopted  in  Convention,  at  Sacramento,  March  3,  A.  D. 
1879  J  Ratified  by  a  Vote  op  the  People  on  Wednes- 
day, May  7,  1879. 


PREAMBLE  AND  DECLARATION  OF  RIGHTS. 

PREAMBLE. 

We,  the  people  of  the  state  of  California,  grateful  to 
Almighty  God  for  our  freedom,  in  order  to  secure  and  per- 
petuate its  blessings,  do  establish  this  Constitution. 

STATE  OF  CALIFORNIA.— The  names  "The  State  of  California" 
and  "The  People  of  the  State  of  California"  describe  the  same  party, 
and  a  statute  which  requires  a  bond  to  be  given  in  one  name  is  satis- 
fied by  a  bond  given  in  the  other.     (People  v.  Love,  19  Cal.  676.) 

FORM  OF  GOVERNMENT.— Our  system  is  not  a  pure  democracy, 
but  a  representative  republican  government.  (Hobart  v.  Butte 
County  Supervisors,  17  Cal.  23.) 

(127) 


Art.  I,  §  1  CONSTITUTION  OF  1879.  128 

ARTICLE  I. 

DECLARATION  OF  RIGHTS. 

§     1.  Inalienaljle  rights. 

§     2.  Political  power. 

§     3.  Relation  to  the  American  Union. 

§     4.  Religious  freedom. 

§     5.  Habeas  corpus. 

§     6.  Right  to  bail — Rights  of  witnesses. 

§     7.  Trial  by  jury. 

§     8.  Offenses,  how  prosecuted. 

§     9.  Liberty  of  speech  and  freedom  of  the  press — Trials  for  libel. 

§  10.  Popular  assemblies. 

§   11.  Uniformity  of  laws. 

§  12.  Military  power. 

§  13.  Personal  and  property  rights. 

§   14.  Eminent  domain. 

§   15.  Imprisonment  in  civil  cases. 

§  16.  Laws  prohibited — Bills  of  attainder,  ex  post  facto,  etc. 

§   17.  Rights  of  foreign  residents. 

§  18.  Slavery  prohibited. 

§  19.  Searches  and  seizures,  restriction  on. 

§  20.  Treason  defined. 

§  21.  Privileges  and  immunities  of  citizens. 

§  22.  Provisions  of  Constitution  construed. 

§  23.  Rights  retained  by  the  people. 

§  24.  Property  qualification  not  required. 

§  25.  Right  to  fish  upon  public  lands. 

§  26a.  Intoxicating  liquor  amendment. 

Inalienable  rights. 

Section  1.  All  men  are  by  nature  free  and  independent, 
and  have  certain  inalienable  rights,  among  which  are  those 
of  enjoying  and  defending  life  and  liberty ;  acquiring,  pos- 
sessing, and  protecting  property;  and  pursuing  and  obtain- 
ing safety  and  happiness. 

PROPERTY. — The  right  of  acquiring,  possessing,  and  protecting 
property  is  one  of  the  primary  objects  of  government,  is  guaranteed 
by  the  Constitution,  and  cannot  be  impaired  by  the  legislature.  (Bill- 
ings v.  Hall,  7  Cal.  1.) 

The  right  of  protecting  property  is  not  the  mere  right  to  protect  it 
by  individual  force,  but  the  right  to  protect  it  by  the  law  of  the  land, 
and  the  force  of  the  body  politic.     (Billings  v.  Hall,  7  Cal.  1.) 

The  right  of  property  antedates  all  Constitutions.  This  right  is 
invaded  if  the  owner  is  not  at  liberty  to  contract  with  others  respect- 
ing the  use  to  which  he  may  subject  his  property,  or  tlie  manner  in 
which  he  may  enjoy  it.  (Stimson  Mill  Co.  v.  Braun,  136  Cal.  122, 
89  Am.  St.  Rep.  116,  57  L.  R.  A.  726,  68  Pac.  481.) 


129  DECLARATION    OF   BIGHTS.  Art.  I,  §  1 

A  statute  declaring  that  all  contracts  for  the  construction  of  build- 
ings, with  certain  exceptions,  must  provide  for  the  payment  of  the 
contract  price  in  money,  is  in  violation  of  this  section.  (Stimson  Mill 
Co.  V.  Braun,  136  Cal.  122,  89  Am.  St.  Rep.  116,  57  L.  R.  A.  726,  68 
Pac.  481.) 

The  right  to  acquire  property  is  the  right  to  use  the  proper  means 
to  attain  the  end;  and  the  use  of  such  means  cannot  be  prohibited 
by  the  legislature,  unless  the  peace  and  safety  of  the  state  require  it. 
(Ex  parte  Newman,  9  Cal.  502.) 

An  act  requiring  a  party  to  pay  for  improvements  put  upon  his 
land  by  a  trespasser,  against  his  will,  is  void.  (Billings  v.  Hall,  7 
Cal.  1.; 

So  an  act  altering  or  destroying  the  nature  or  tenure  of  estates  is 
void.     (Dewey  v.  Lambier,  7  Cal.  347.) 

The  provision  of  section  1203  of  the  Code  of  Civil  Procedure  that 
a  failure  to  comply  with  the  section  by  filing  a  good  and  sufficient 
bond  with  the  building  contract  in  an  amount  equal  to  at  least 
twenty-five  per  cent  of  the  contract  price  shall  render  "the  owner 
and  contractor  jointly  and  severally  liable  in  damages  to  any  and  all 
materialmen,  and  subcontractors  entitled  to  liens  upon  property  af- 
fected by  said  contract,"  is  an  unreasonable  restraint  upon  the  owner 
of  the  property  in  the  use  thereof,  and  is  an  unreasonable  restriction 
upon  the  power  to  make  contracts,  and  is,  therefore,  unconstitutional. 
(Gibbs  v.  Tally,  133  Cal.  373,  60  L.  R.  A.  815,  65  Pac.  970;  San  Fran- 
cisco Lumber  Co.  v.  Bibb,  139  Cal.  192,  72  Pac.  964;  Montague  &  Co. 
V.  Furness,  145  Cal.  205,  78  Pac.  640.) 

An  act  authorizing  the  probate  court  to  order  a  sale  of  the  prop- 
erty of  a  decedent,  when  it  is  for  the  best  interest  of  the  estate,  is 
valid.  (Estate  of  Porter,  129  Cal.  86,  79  Am.  St.  Rep.  78,  61  Pac. 
659.) 

But  such  an  act  cannot  affect  estates  of  decedents  who  died  before 
the  passage  of  the  act.  (Brenham  v.  Story,  39  Cal.  179;  Estate  of 
Packer,  125  Cal.  396,  73  Am.  St.  Rep.  58,  58  Pac.  59;  Estate  of 
Freud,  131  Cal.  667,  82  Am.  St.  Rep.  407,  63  Pac.  1080.) 

An  ordinance  requiring  street-car  transfers  to  be  issued  and  deliv- 
ered within  the  street-cars  from  which  the  transfer  is  made,  and  re- 
ceived only  within  the  car  to  which  it  is  made,  and  forbidding  any 
person  to  whom  a  transfer  is  issued  to  give  away,  transfer,  or  sell  the 
same,  is  not  in  violation  of  this  section.  (Ex  parte  Lorenzen,  128 
Cal.  431,  79  Am.  St.  Rep.  47,  50  L.  R.  A.  55,  61  Pac.  68.) 

An  act  requiring  litigants  to  take  the  oath  of  allegiance  is  not  in 
violation  of  this  section.     (Cohen  v.  Wright,  22  Cal.  293.) 

An  act  making  it  unlawful  to  buy  or  sell  quail  is  not  in  violation 
of  this  section.  (Ex  parte  Kenneke,  136  Cal.  527,  89  Am.  St.  Rep. 
177,  69  Pac.  261.) 

A  statute  exempting  a  municipal  corporation  from  liability  for 
damages  for  injuries  sustained  by  any  person  on  its  graded  streets, 
but  making  the  officers  of  the  city  liable  therefor,  is  valid.  (Par- 
sons v.  San  Francisco,  23  Cal.  462.) 

The  act  of  1907,  page   122,   prohibiting  waste  from  artesian  wells 
does    not    unconstitutionally    interfere    with    private    property.     (Ex 
parte  Elam,  6  Cal.  App.  233,  91  Pac.  811.) 
Constitution — 9 


Art.  I,  §  1  CONSTITUTION  OF  1879.  130 

An  ordinance  providing  for  the  destruction  of  dogs  not  licensed 
is  not  an  unconstitutional  interference  with  property.  (In  re  Acker- 
man,  6  Gal.  App.  5,  91  Pac.  429.) 

A  provision  in  the  specifications  for  public  street  work  that  no  un- 
naturalized alien  should  be  employed  in  the  work,  except  with  the 
permission  of  the  highway  commission,  is  invalid.  (City  Street  Imp. 
Co.  v.  Kroh,  158  Cal.  308,  110  Pac.  933.) 

Section  384  of  the  Penal  Code,  subdivision  3,  declaring  it  a  misde- 
meanor to  willfully  and  negligently  build  a  fire  on  one's  own  land 
for  the  purposes  of  burning  brush,  etc.,  is  violative  of  the  federal  and 
state  Constitutions  as  an  unreasonable  and  oppressive  interference 
with  the  right  to  use  and  enjoy  property.  (In  re  McCapes,  157  Cal. 
26,  106  Pac.  229.) 

The  provision  of  the  mechanic's  lien  law  allowing  an  attorney's 
fee  to  plaintiff  but  not  to  defendant  is  in  violation  of  this  provision. 
(Builders'  Supply  Depot  v.  O'Connor,  150  Cal.  265,  119  Am.  St.  Eep. 
193,  11  Ann.  Cas.  712,  17  L.  R.  A.  (N.  S.)  909,  88  Pac.  982.) 

The  right  of  property  includes  the  right  to  dispose  of  such  prop- 
erty in  such  manner  as  the  owner  pleases,  and  to  sell  it  for  such 
price  as  he  can  obtain  in  fair  barter.  (Ex  parte  Quarg,  149  Cal. 
79,  117  Am.  St.  Eep.  115,  9  Ann.  Cas.  747,  5  L.  R.  A.  (N.  S.)  183,  84 
Pac.  766.) 

The  mechanic's  lien  law  is  not  unconstitutional  because  it  abridges 
the  right  of  contract  in  respect  to  one's  property.  (Stimson  Mill  Co. 
V.  Nolan,  5  Cal.  App.  754,  91  Pac.  262.) 

The  provision  of  section  1L'03  of  the  Code  of  Civil  Procedure  that  a 
failure  to  comply  with  the  section  by  filing  a  good  and  sufficient  bond 
with  the  building  contract  in  an  amount  equal  to  at  least  twenty-five 
per  cent  of  the  contract  price  shall  render  "the  owner  and  contractor 
jointly  and  severally  liable  in  damages  to  any  and  all  materialmen, 
and  subcontractors  entitled  to  liens  upon  property  affected  by  said 
contract,"  is  an  unreasonable  restraint  upon  the  owner  of  the  prop- 
erty in  the  use  thereof,  and  is  an  unreasonable  restriction  upon  the 
power  to  make  contracts,  and  is,  therefore,  unconstitutional.  (Mar- 
tin v.  McCabe,  21  Cal.  App.  658,  132  Pac.  606.) 

Business. — The  legislature  cannot  forbid  the  lawful  pursuit  of  a 
lawful  occupation  on  one  day  of  the  week  any  more  than  it  can  for- 
bid it  altogether.  (Ex  parte  Newman,  9  Cal.  502.  But  see  Ex  parte 
Andrews,  18  Cal.  678.)  ^ 

But  this  provision  does  not  prevent  the  legislature  from  prohibit- 
ing the  conducting  of  offensive  trades  within  the  limits  of  a  city.  (Ex 
parte  Shrader,  33  Cal.  279.) 

So  an  ordinance  making  it  unlawful  for  any  person  to  conduct  a 
laundry  within  certain  limits  without  a  certificate  from  the  health 
officer  as  to  its  sanitary  condition,  and  a  certificate  from  the  fire 
wardens  as  to  the  condition  of  the  heating  appliances,  and  forbidding 
the  operation  of  any  laundry  between  10  P.  M.  and  6  A.  M.,  or  on 
Sunday,  is  valid.     (Ex  parte  Moynier,  65  Cal.  33,  2  Pac.  728.) 

An  ordinance  making  it  unlawful  to  play  any  instrument,  etc.,  in 
any  saloon,  etc.,  after  midnight,  and  for  any  female  to  be  in  any 
saloon,  etc.,  after  midnight,  does  not  violate  this  provision.  (Ex 
parte  Smith  &  Keating,  38  Cal.  702.) 


131  DECLARATION    OF   RIGHTS.  Art.  I,  §  2 

A  statute  limiting  the  compensation  of  employment  agencies  is  in- 
valid. (Ex  parte  Dickey,  144  Cal.  234,  103  Am.  St.  Rep.  82,  1  Ann. 
Gas.  428,  66  L.  R.  A.  928,  77  Pac.  924.) 

When  a  lawful  business  is  of  a  beneficial  character,  and  not  dan- 
gerous to  the  public,  it  cannot  be  subjected  to  police  regulation.  (Ex 
parte  Dickey,  144  Cal.  234,  103  Am.  St.  Rep.  82,  1  Ann.  Cas.  428,  66 
L.  R.  A.  928,  77  Pac.  924.) 

It  is  always  a  judicial  question  whether  any  particular  regulation 
of  the  constitutional  right  of  the  citizen  to  engage  in  an  innocent  and 
useful  business  is  a  valid  exercise  of  the  legislative  power.  (Ex 
parte  Hayden,  147  Cal.  649,  109  Am.  St.  Rep.  183,  1  L.  R.  A.  (N.  S.) 
184,  82  Pac.  315.) 

An  act  making  it  unlawful  to  issue  trading  stamps  and  coupons  is 
unconstitutional.  (Ex  parte  Drexel,  147  Cal.  763,  3  Ann.  Cas.  878, 
2  L..  R.  A.  (N.  S.)   588,  82  Pac.  429.) 

The  legislature  has  the  constitutional  right  to  modify  the  common 
law  by  taking  away  the  revocable  nature  of  the  license  granted  by  a 
ticket  to  a  place  of  public  amusement.  (Greenberg  v.  Western  Turf 
Assn.,  148  Cal.  126,  113  Am.  St.  Rep.  216,  82  Pac.  684.) 

An  act  forbidding  the  employment  of  women  for  more  than  eight 
hours  a  day  does  not  conflict  with  this  section  so  far  as  it  applies  to 
women  employed  in  hotels.  (Matter  of  Application  of  Miller,  162 
Cal.  687,  124  Pac.  427;  affirmed  in  Miller  v.  Wilson,  236  U.  S.  373,  59 
L.  Ed.  628,  35  Sup.  Ct.  Rep.  342.) 

Constitutionality   of   statutes   restricting   contracts   and   business. 
See  note,  21  L.  R.  A.  789. 

Sunday  laws. — In  Ex  parte  Newman,  9  Cal.  502,  it  was  held  that  an 
act  making  it  unlawful  to  transact  any  business  upon  the  Sabbath, 
except  certain  designated  ones,  was  in  violation  of  this  provision, 
on  the  ground  that  the  legislature  can  no  more  forbid  the  lawful 
pursuit  of  a  lawful  occupation  on  one  day  of  the  week  than  it  can 
forbid  it  altogether.  This  decision  was  overruled  in  Ex  parte  An- 
drews, 18  Cal.  678,  and  Ex  parte  Bird,  19  Cal.  130. 

An  act  making  it  a  misdemeanor  to  keep  open  a  barber-shop  on 
Sundays  or  other  holidays  is  in  violation  of  this  section.  (Ex  parte 
Jentzsch,  112  Cal.  468,  32  L.  R.  A.  664,  44  Pac.  803.) 

Life,  liberty,  etc. — A  law  imposing  the  death  penalty  upon  a  person 
undergoing  a  life  sentence,  who,  with  malice  aforethought,  commits 
an  assault  upon  another  with  a  deadly  weapon,  or  by  any  means  likely 
to  produce  bodily  injury,  is  valid.  (In  re  Finley,  1  Cal.  App.  198, 
81  Pac.  1041.) 

Right   of   privacy,  when   and   how  may  be  enforced.     See   note, 
89  Am.  St.  Rep.  844. 

Right  to  life,  liberty  and  the  pursuit  of  happiness.     See  6  R.  C. 
L.,  §§  243-250,  pp.  258-266. 

Political  power. 

Sec.  2.  All  political  power  is  inherent  in  the  people. 
Government  is  instituted  for  the  protection,  security,  and 


Art.  I,  §§3, 4  CONSTITUTION  OF  1879.  132 

benefit  of  the  people,  and  they  have  the  right  to  alter  or 
reform  the  same  whenever  the  public  good  may  require  it. 
THE  PEOPIiE. — The  people  are  such  as  are  born  upon  the  soil, 
and  such  foreigners  as  may  elect  to  assume  the  obligations  of  citizens 
by  naturalization.  Those  who  are  not  of  the  people  have  no  share 
in  political  power;  and,  therefore,  an  alien  is  not  eligible  to  an  ofG.ce 
in  this  state.     (Walther  v.  Eabolt,  30  Cal.  185.) 

Relation  to  the  American  Union. 

Sec.  3.  The  state  of  California  is  an  inseparable  part  of 
the  American  Union,  and  the  Constitution  of  the  United 
States  is  the  supreme  law  of  the  land. 

AMERICAN  UNION.— The  United  States  Constitution  is  the  su- 
preme law  of  the  land.  (U.  S.  Const.,  art.  VI,  sec.  2;  Prigg  v.  Com- 
monwealth, 16  Pet.  590,  628,  10  L.  Ed.  1080,  1094;  New  Jersey  v. 
Wilson,  7  Cranch,  164,  3  L.  Ed.  303;  Terrett  v.  Taylor,  9  Cranch,  43, 
3  L.  Ed.  650;  Von  Hoffman  v.  Quincy,  4  Wall.  535,  18  L.  Ed.  403; 
Taylor  v.  Taintor,  16  Wall.  366,  21  L.  Ed.  287;  Ex  parte  Komaine, 
23  Cal.  585.) 

The  object  of  the  United  States  Constitution  was  to  establish  a 
government  which,  to  the  extent  of  its  powers,  should  be  supreme 
within  its  sphere  of  action.  (Dobbins  v.  Commrs.  of  Erie  Co.,  16  Pet. 
435,  10  L.  Ed.  1022;  Ableman  v.  Booth,  21  How.  506,  520;  16  L.  Ed. 
169,  175;  Cohens  v.  Virginia,  6  Wheat.  264,  5  L.  Ed.  257;  United 
States  v.  Rhodes,  1  Abb.  U.  S.  28,  44,  Fed.  Cas.  No.  16,151;  McCulloch 
v.  Maryland,  4  Wheat.  316,  4  L.  Ed.  579.) 

The  Constitution  of  the  United  States  is  a  part  of  the  organic  law 
of  each  state.  (Taylor  v.  Taintor,  16  Wall.  366,  21  L.  Ed.  287;  Ex 
parte  Romaine,  23  Cal.  585.) 

This  section  does  not  have  the  effect  to  make  the  various  provi- 
sions of  the  Constitution  of  the  United  States  a  part  of  our  state  Con- 
stitution,    (People  V.  Nolan,  144  Cal.  75,  77  Pac.  774.) 

Religious  freedom. 

Sec.  4.  The  free  exercise  and  enjoyment  of  religious  pro- 
fession and  worship,  without  discrimination  or  preference, 
shall  be  forever  guaranteed  in  this  state ;  and  no  person 
shall  be  rendered  incompetent  to  be  a  witness  or  juror  on 
account  of  his  opinions  on  matters  of  religious  belief;  but 
the  liberty  of  conscience  hereby  secured  shall  not  be  so  con- 
strued as  to  excuse  acts  of  licentiousness,  or  justify  practices 
inconsistent  with  the  peace  or  safety  of  this  state. 

SUNDAY  IiAWS. — In  Ex  parte  Newman,  9  Cal.  502,  it  was  held 
that  an  act  making  it  unlawful   to   transact  any  business  upon  the 


133  DECLARATION    OF   RIGHTS.  Art.  I,  §  5 

Sabbath,  except  certain  designated  ones,  was  in  violation  of  this  pro- 
vision. In  reaching  this  conclusion,  the  following  principles  were 
laid  down: 

Our  constitutional  theory  regards  all  religions,  as  such,  as  equally 
entitled  to  protection  and  equally  unentitled  to  preference.  Where 
there  is  no  ground  or  necessity  upon  which  a  principle  can  rest  but  a 
religious  one,  then  the  Constitution  steps  in  and  says  that  it  shall  not 
be  enforced  by  authority  of  law. 

"When  the  citizen  is  compelled  by  the  legislature  to  do  any  affirma- 
tive act,  or  to  refrain  from  doing  anything,  merely  because  it  violates 
a  religious  principle  or  observance,  the  act  is  unconstitutional. 

This  provision  does  not  mean  to  guarantee  merely  toleration,  but 
religious  liberty  in  its  largest  sense,  and  a  perfect  equality,  without 
distinction,  between  religious  sects.  An  enforced  observance  of  a 
day  held  sacred  by  one  of  these  sects  is  a  discrimination  in  favor 
of  that  sect,  and  a  violation  of  the  religious  freedom  of  the  others. 

This  decision,  however,  has  been  overruled  by  later  cases:  Ex  parte 
Andrews,  18  Cal.  €78;  Ex  parte  Bird,  19  Cal.  130;  Ex  parte  Burke,  59 
Cal.  6,  43  Am.  Rep.  231. 

WITNESSES. — This  section  means  that  a  witness  is  competent 
without  respect  to  his  religious  sentiments  or  convictions — the  law 
leaving  his  competency  to  legal  sanctions,  or,  at  least,  to  considera- 
tions independent  of  religious  sentiments  and  convictions.  (Fuller 
V.  Fiiller,  17  Cal.  60.5.) 

Religious  belief  as  affecting  competency  of  witness.     See  notes, 
92  Am.  Dec.  473;   12  Ann.  Cas.  155, 

Right  to  religious  freedom.     See  6  R.  C.  L.,  §  237,  p.  251. 

Habeas  corpus. 

Sec.  5.  The  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended  unless  when,  in  cases  of  rebellion  or  inva- 
sion, the  public  safety  may  require  its  suspension. 

HABEAS  CORPUS. — This  right  is  to  be  exercised  in  a  reasonable 
manner.  The  writ  should  not  issue  to  run  out  of  the  county,  unless 
for  good  cause  shown — as  the  absence,  disability,  or  refusal  to  act 
of  the  local  judge — or  other  reason  showing  that  the  object  and 
reason  of  the  law  requires  its  issuance.  Nor  should  it  issue  from 
the  supreme  court  in  any  case,  except  under  the  same  circumstances. 
(Ex  parte  Ellis,  11  Cal.  222.) 

The  writ  of  habeas  corpus  will  not  issue  when  the  restraint  is  not 
real,  but  merely  nominal  and  permissive.  (In  re  Gow,  139  Cal.  242, 
73  Pac.  145.) 

As  to  what  courts  may  issue  writs  of  habeas  corpus,  see  article  VI, 
sections  4,  5;  People  v.  Turner,  1  Cal.  143,  52  Am.  Dec.  295;  Ex  parte 
Perkins,  2  Cal.  424;  People  v.  Booker,  51  Cal.  317;  Tyler  v.  Houghton, 
25  Cal.  26. 

Nature  and  purpose  of  writ  of  habeas  corpus.     See  note,  87  Am. 
St.  Rep.  168. 


Art.  I,  §  6  CONSTITUTION  OF  1879.  134 

When  refusal  of  writ  of  habeas  corpus  is  justifiable.     See  note,  67 
Am.  Dec.  395. 

Authority  of  state  courts  in  habeas  corpus.     See  note,  37  Am.  Dec. 

200. 
{Suspension  of  writ  during  insurrection  or  rebellion  necessitating 

government  by  martial  law.     See  note,  98  Am.  St.  Eep.  776. 
Suspension  of  writ.     See  note,  45  L.  E.  A.  832. 
Original  jurisdiction  of  state  court  of  last  resort  to  issue  writ  of 

habeas  corpus.     See  note,  Ann,  Cas.  1913A,  156. 

"Right  to  bail — Rights  of  witnesses. 

Sec.  6.  All  persons  shall  be  bailable  by  sufficient  sure- 
ties, unless  for  capital  offenses  when  the  proof  is  evident 
or  the  presumption  great.  Excessive  bail  shall  not  be  re- 
quired, nor  excessive  fines  imposed ;  nor  shall  cruel  or  un- 
usual punishments  be  inflicted.  Witnesses  shall  not  be 
unreasonably  detained,  nor  confined  in  any  room  where 
criminals  are  actually  imprisoned. 

BAHi. — Admission  to  bail  in  capital  cases,  where  the  proof  is  evi- 
dent or  the  presumption  great,  may  be  made,  under  our  Constitution, 
matter  of  discretion,  and  may  be  forbidden  by  the  legislature.  In  all 
other  cases  the  admission  to  bail  is  a  right  of  the  accused,  which  no 
judge  or  court  can  properly  refuse.  (People  v.  Tinder,  19  Cal.  539,  81 
Am.  Dec.  77.) 

An  act  making  admission  to  bail  matter  of  discretion  in  all  cases 
where  the  punishment  is  death,  unless  the  proof  is  evident  or  the 
presumption  great,  is  in  conflict  with  this  section.  (People  v.  Tinder, 
19  Cal.  539,  81  Am.  Dec.  77.) 

This  section  does  not  prevent  the  court  from  ordering  the  defend- 
ant into  custody  as  soon  as  the  trial  is  commenced.  (People  v.  Will- 
iams, 59  Cal.  674.) 

This  provision  applies  only  to  cases  in  which  the  party  has  not  been 
already  convicted.     (Ex  parte  Vol],  41  Cal.  29.) 

A  person  arrested  for  felony  must,  in  order  l|o  procure  bail,  be 
taken  before  the  magistrate  who  issued  the  warrant,  or  some  other 
magistrate  in  the  same  county.     (Ex  parte  Hung  Sin,  54  Cal.  102.) 

The  court  should  not  refuse  to  accept  on  bail  a  surety  who  is  a  non- 
resident of  the  county  unless  there  is  some  circumstance  that  would 
reasonably  excite  suspicion  as  to  such  surety,  or  unless  it  would  be 
difficult  to  investigate  his  financial  standing.  (Ex  parte  Euef,  8  Cal. 
App.  468,  97  Pac.  89.) 

Sureties  on  a  bail  bond  may  qualify  with  property  real  or  personal 
in  the  county  or  elsewhere.  (Ex  parte  Ruef,  8  Cal.  App.  468,  97  Pac. 
89.) 

A  court  has  no  power  to  refuse  friends  and  relatives  of  the  accused 
as  bail  for  the  sole  reason  that  they  are  such.  (Ex  parte  Ruef,  8  Cal. 
App.  468,  97  Pac.  89.) 


135  DECLARATION    OF   RIGHTS,  Art.  I,  §  7 

Unless  there  is  an  aflBrmative  showing  of  danger  to  the  safety  of 
an  accused  person  or  to  society  in  allowing  him  to  be  admitted  to  bail, 
he  IS  entitled  to  be  admitted  to  bail  until  a  hearing  and  examination 
can  be  had.     (In  re  Henley,  18  Cal.  App.  1,  121  Pae.  933.) 

Admission   to   bail   after  indictment   for   murder.     See   notes,   81 
Am.  Dec.  87;   39  L.  R.  A.   (N.  S.)   752. 

Bail  as  matter  of  right  or  of  discretion.     See  notes,  1  Ann.  Gas. 

12;  9  Ann.  Gas.  619. 
Eight  to  bail.     See  3  E.  C.  L.,  §§3-21,  pp.  5-21, 

WITNESSES. — A  person  detained  as  a  witness  ninety  days,  and 
after  several  continuances  not  satisfactorily  accounted  for,  is  entitled 
to  his  discharge  under  this  section.  (Ex  parte  Dressier,  67  Cal,  257, 
7  Pac.  645.) 

PUNISHMENT. — "Cruel  and  unusual  punishments"  are  punish- 
ments of  a  barbarous  character  and  unknown  to  the  common  law. 
(State  V.  McCauley,  15  Cal.  429.) 

A  statute  authorizing  the  leasing  out  of  convicts  is  not  in  violation 
of  this  provision.     (State  v.  McCauley,  15  Cal.  429.) 

A  law  making  an  offense  punishable  "by  imprisonment  in  the  state 
prison  not  exceeding  five  years,  or  in  the  county  jail  not  exceeding 
six  months,  or  both,"  is  valid.  (People  v.  Perini,  94  Cal.  573,  29  Pac, 
1027.) 

An  act  imposing  merely  a  minimum  penalty  is  not  unconstitutional, 
(In  re  Hallawell,  8  Cal.  App.  563,  97  Pac.  320.) 

Imprisonment  in  the  county  jail  or  state  prison  is  not  unusual  nor 
cruel.     (In  re  O'Shea,  11  Cal.  App.  568,  105  Pac.  776.) 

Cruel  and  unusual  punishments  are  punishments  of  a  barbarous  na- 
ture unknown  to  the  common  law,  being  such  as  disgraced  the  civili- 
zation of  former  ages  and  made  one  shudder  with  horror  to  read  of 
them.     (In  re  O'Shea,  11  Cal.  App.  568,  105  Pac.  776.) 

The  death  penalty,  imposed  by  section  246  of  the  Penal  Code,  upon 
a  person  undergoing  a  life  sentence  who  commits  an  assault  with  a 
deadly  weapon,  is  not  a  cruel  or  unusual  punishment  forbidden  by  the 
Constitution.     (People  v.  Oppenheimer,  156  Cal,  733,  106  Pac.  74.) 

This  section  removes   the   danger   that   persons  may  be  imprisoned 

for  an  unlimited  period  for  nonpayment  of  a  fine  for  contempt.     (Ex 

parte  Karlson,  160  Cal.  378,  Ann,  Cas,  1912D,  1334,  117  Pac,  447,) 

Power  to  imprison  until  fine  paid.     See  note,   12  Am,  St.  Eep.  202, 

Cruel  and  unusual  punishment.     See  notes,  19  Ann.  Cas.  725;   35 

L.  R.  A.  561;  8  E,  C.  L.,    §§  271-279,  pp.  262-269. 

Trial  by  jury. 

Sec,  7,  The  right  of  trial  by  jury  shall  be  secured  to  all, 
and  remain  inviolate ;  but  in  civil  actions  three-fourths  of 
the  jury  may  render  a  verdict.  A  trial  by  jury  may  be 
waived  in  all  criminal  cases,  not  amounting  to  felony,  by 
the  consent  of  both  parties,  expressed  in  open  court,  and  in 


Art.  I,  §  7  CONSTITUTION  OF  IS  id.  136 

civil  actions  by  the  consent  of  the  parties,  signified  in  such 
manner  as  may  be  prescribed  by  law.  In  civil  actions,  and 
cases  of  misdemeanor,  the  jury  may  consist  of  twelve,  or  of 
any  number  less  than  twelve  upon  which  the  parties  may 
agree  in  open  court. 

TRIAL  BY  JURY. — TTiis  section  only  gives  a  right  to  a  trial  by- 
jury  in  cases  where  the  right  existed  at  common  law.  (Cassidy  v. 
Sullivan,  64  Cal.  266,  28  Pac.  234;  Ko-ppikus  v.  State  Capitol  Commrs., 
16  Cal.  248;  Woods  v.  Varnum,  85  Cal.  639,  24  Pac.  843;  Vallejo  etc. 
R.  R.  Co.  V.  Reed  Orchard  Co.,  169  Cal.  545,  147  Pac.  238.) 

It  cannot  be  demanded  as  of  right  in  an  equity  case,  but  only  in 
criminal  and  civil  cases  in  which  an  issue  of  fact  is  joined.  (Koppi- 
kus  V.  State  Capitol  Commrs.,  16  Cal.  248.) 

The  right  does  not  exist  in  actions  for  divorce  (Cassidy  v.  Sulli- 
van, 64  Cal.  266,  28  Pac.  234) ;  condemnation  proceedings  (Koppikus 
V.  State  Capitol  Commrs.,  16  Cal.  248);  proceedings  for  the  removal  of 
public  officers  (Woods  v.  Varnum,  85  Cal.  639,  24  Pac.  843);  or  in 
cases  of  equity  jurisdiction.  (Pacific  Ry.  Co.  v.  Wade,  91  Cal.  449, 
25  Am.  St.  Rep.  201,  13  L.  R.  A.  754,  27  Pac.  768.) 

A  party  is  not  entitled  to  a  jury  trial  in  an  action  brought  to  abate 
a  nuisance,  and  for  an  injunction  to  prevent  it,  although  damages 
are  also  prayed  for.  (McCarthy  v.  Gaston  Ridge  Mill  etc.  Co.,  144 
Cal.  542,    78  Pac.  7.) 

As  to  the  right  to  a  jury  trial  in  an  action  to  quiet  title,  where  the 
defendant  is  in  possession,  see  Hyde  v.  Redding,  74  Cal.  493,  16  Pac. 
380;  Angus  v.  Craven,  132  Cal.  691,  64  Pac.  1091,  and  cases  there 
cited. 

An  act  providing  for  the  removal  of  officers  for  extortion,  and  pro- 
viding generally  that  the  practice  governing  other  civil  actions  shall 
apply  thereto,  does  not  deprive  the  defendant  of  a  jury  trial.  (Ryan 
v.  Johnson,  5  Cal.  86.) 

The  refusal  to  allow  a  jury  is  mere  error  and  cannot  be  reviewed  by 
writ  of  review.  (Goodman  v.  Superior  Court,  8  Cal.  App.  232,  96  Pac. 
395.) 

Both  in  criminal  cases  not  amounting  to  felon^,  and  in  civil  ac- 
tions, the  right  of  trial  by  jury  may  be  waived.  (Goodman  v.  Su- 
perior Court,  8  Cal.  App.  232,  96  Pac.  395.) 

The  granting  of  a  nonsuit  is  not  violation  of  the  constitutional 
right  to  a  jury  trial  where  it  already  appears  that  plaintiff  is  guilty 
of  contributory  negligence.  (Bohn  v.  Pacific  Electric  Ry.  Co.,  5  Cal. 
App.  622,  91  Pac.  115.) 

Section  1192  of  the  Penal  Code,  conferring  upon  the  court  the  power 
to  determine  the  degree  of  a  crime  upon  a  plea  of  guilty,  is  not  un« 
constitutional  as  infringing  upon  the  right  of  trial  by  jury.  (People 
V.  Chew  Lan  Ong,  141  Cal.  550,  99  Am.  St.  Rep.  88,  75  Pac.  186.) 

The  power  of  the  court  to  grant  a  new  trial  for  insufficiency  of  the 
evidence,  or  for  excessive  damages,  does  not  violate  the  right  of  trial 
by  jury.  (Ingraham  v.  Weidler,  139  Cal.  588,  73  Pac.  415;  Estate  of 
Bainbridge,  169  Cal.  166,  146  Pac.  427.) 


137  DECLARATION    OF   RIGHTS,  Art.  I,  §  7 

Conditions  and  restrictions  which  may  be  imposed  by  the  legisla- 
ture upon  trial  by  jury.     See  note,  98  Am.  St.  Rep.  538. 

In  what  cases  legislature  may  dispense  with  trial  by  jury.  See 
note,  48  Am.  Dec.  185. 

General  scope  of  constitutional  provisions  guaranteeing  right  of 
trial  by  jury.     See  note,  1  Ann.  Cas.  703. 

Validity  of  court  rule  regulating  right  to  jury  trial.  See  note, 
Ann.  Cas.  1914B,  1184. 

Eight  of  accused  to  trial  by  jury.     See  8  R.  C.  L.,  §  19,  p.  67. 

Petty  offenses. — This  provision  does  not  prohibit  the  legislature 
from  providing  for  summary  proceedings  without  a  jury  in  cases  of 
•uch  petty  offenses  as  were  enumerated  in  the  English  statutes  at  the 
time  of  the  separation  of  the  American  colonies  from  England,  or  in 
cases  where  the  offenses  are  intrinsically  of  the  same  nature  and  de- 
gree. (Ex  parte  Wong  You  Ting,  106  Cal.  296,  39  Pac.  627;  In  re 
Fife,  110  Cal.  8,  42  Pac.  299.) 

But  where  the  offense  falls  within  the  legal  or  common-law  notion 
of  crime  or  misdemeanor,  and  is  embraced  in  the  criminal  code  of  the 
state,  the  constitutional  right  of  trial  by  jury  cannot  be  evaded. 
(Taylor  v.  Reynolds,  92  Cal.  573,  28  Pac.  688;  Ex  parte  Wong  You 
Ting,  106  Cal.  296,  39  Pac.  627.) 

A  jury  is  not  a  necessary  constituent  part  of  a  court  for  the  trial 
of  a  misdemeanor.  (Wittman  v.  Police  Court,  145  Cal.  474,  78  Pac. 
1052.) 

Whether  jury  in  criminal  case  may  be  more  or  less  than  twelve. 
See  note,  Ann.  Cas.  1914A,  872;  43  L.  R.  A.  34. 

Vicinage. — By  the  common  law,  the  trial  of  all  crimes  is  required 
to  be  by  a  jury  selected  from  the  vicinage  or  county  where  the  crime 
is  alleged  to  have  been  committed;  and  the  same  right  is  secured  by 
this  section.  Therefore,  section  1033  of  the  Penal  Code,  allowing 
a  criminal  action  to  be  removed  to  another  county  without  the  con- 
sent of  the  defendant,  is  unconstitutional.  (People  v.  Powell,  87  Cal. 
348,  11  L.  R.  A.  75,  25  Pac.  481.) 

Jurors. — A  law  taking  away  the  challenge  to  a  juror  for  implied 
bias,  on  the  ground  that  the  juror  has  formed  or  expressed  an  un- 
qualified opinion  as  to  the  guilt  of  the  accused,  is  constitutional. 
(People  v.  Ah  Lee  Doon,  97  Cal.  171,  31  Pac.  933.) 

The  court  may,  in  its  discretion,  permit  a  separation  of  the  jurors 
during  the  impaneling  of  the  jury  and  the  subsequent  progress  of  the 
trial.     (People  v.  Chaves,  122  Cal.  134,  54  Pac.  596.) 

Waiver  of  jury  trial.— The  legislature  alone,  and  not  the  court, 
can  determine  what  shall  constitute  a  waiver  of  a  jury  trial.  (Exline 
V,  Smith,  5  Cal.  112.) 

The  right  to  a  jury  trial  is  not  waived  by  going  to  trial  after  it 
has  been  denied,  and  the  denial  of  it  may  be  reviewed  upon  an  appeal 
from  the  judgment.     (In  re  Robinson,  106  Cal.  493,  39  Pac.  862.) 

A  plea  of  guilty  is  a  waiver  of  a  jury  trial.  (People  v.  Lennox,  67 
Cal.   113,   7   Pac.  260.)     Also   a  failure  to  demand  it  in  a  civil   case 


Art.  I,  §  8  CONSTITUTION  OF  1879.  138 

before  the  trial  begins.     (Polaek  v.  Gurnee,  66  Cal.  266,    5  Pac.  229, 
610.) 

The  legislature  alone  can  determine  what  shall  constitute  a  waiver 
of  a  jury  trial,  and  a  jury  may  be  waived  only  in  one  of  the  three 
modes  prescribed  by  section  631  of  the  Code  of  Civil  Procedure. 
(People  V.  Metropolitan  Surety  Co.,  164  Cal.  174,  Ann.  Cas.  1914B, 
1181,  128  Pac.  324.) 

Waiver  of  jury  trial  in  criminal  cases.     See  notes,   1   Ann.   Cas. 
597;  9  Ann.  Cas.  1183. 

Failure  of  defendant  in  criminal  case  to  demand  jury  as  waiver 
of  jury  trial.     See  note,  9  Ann.  Cas.  263. 

Refusal  of,  how  reviewed, — The  denial  of  a  jury  trial  may  be  re-, 
viewed  upon  an  appeal  from  a  judgment  (In  re  Eobinson,  106  Cal. 
493,  39  Pac.  862),  but  cannot  be  reached  by  a  writ  of  habeas  corpus. 
(Ex  parte  Miller,  82  Cal.  454,  22  Pac.  1113.) 

Refusal  of  a  court  to  allow  a  jury  trial  cannot  be  reviewed  by  cer- 
tiorari.    (Wittman  v.  Police  Court,  145  Cal.  474,  78  Pac.  1052.) 

Offenses,  how  prosecuted. 

Sec.  8.  Offenses  heretofore  required  to  he  prosecuted  hy 
indictment  shall  be  prosecuted  by  information,  after  ex- 
amination and  commitment  by  a  magistrate,  or  by  indict- 
ment, with  or  without  such  examination  and  commitment, 
as  may  be  prescribed  by  law.  A  grand  jury  shall  be  drawn 
and  summoned  at  least  once  a  year  in  each  county. 

INDICTMENT  ANB  INFORMATION.— A  crime  committed  before 
the  adoption  of  the  new  Constitution  may,  after  such  adoption,  be 
prosecuted  by  information.  (People  v.  Campbell,  59  Cal.  243,  43  Am. 
Kep.  257.) 

As  to  the  distinction  between  an  indictment  and  a  presentment, 
see  In  re  Grosbois,  109  Cal.  445,  42  Pac.  444. 

Under  this  provision  a  presentment  by  the  grand  jury  for  a  misde- 
meanor is  unauthorized.     (In  re  Grosbois,  109  Cal.|^45,  42  Pac.  444.) 

This  section  does  not  prohibit  a  prosecution  by  indictment  of  any 
criminal  offense,  including  a  misdemeanor.  (Ex  parte  McCarthy,  53 
Cal.  412.) 

A  defendant  cannot  be  put  upon  trial  under  an  information  until 
after  examination  and  commitment  by  a  magistrate.  (Ex  parte 
Nicholas,  91  Cal.  640,  28  Pac.  47.) 

The  Constitution  has  left  the  form  of  the  indictment  to  the  legis- 
lature.    (People  V.  Kelly,  6  Cal.  210.) 

The  provision  of  this  section  for  proceeding  in  criminal  cases  by 
information  is  not  in  conflict  with  the  Constitution  of  the  United 
States,  as  not  being  "due  process  of  law."  (Kalloch  v.  Superior 
Court,  56  Cal.  229.) 

A  conviction  upon  an  information  for  murder  is  not  illegal  as  vio- 
lating the  fourteenth   amendment  to   the  Constitution  of  the  United 


139  DECLARATION    OF   RIGHTS.  Art.  I,  §  8 

States  prohibiting  any  state  from  depriving  "any  person  of  life,  lib- 
erty or  property  without  due  process  of  law."  (Hurtado  v.  Cali- 
fornia, 110  U.  S.  516,  4  Sup.  Ct.  Rep.  292,  28  L.  Ed.  232;  McNulty  v. 
California,  149  U.  S.  645,  37  L.  Ed.  882,  13  Sup.  Ct.  Rep.  959.) 

A  person  indicted  several  times  for  the  same  offense  is  entitled  to 
his  release  on  nominal  bail  on  the  duplicate  indictments.  (Ex  parte 
Ruef,  7  Cal.  App.  750,    96  Pac.  24.) 

Bail  must  not  be  exacted  for  the  purpose  of  punishing  the  defend- 
ant.    (Ex  parte  Ruef,  7  Cal.  App.  750,  96  Pac.  24.) 

The  discretion  of  the  trial  court  in  fixing  bail  will  not  be  interfered 
with,  unless  it  clearly  appears  that  the  court  has  abused  its  discretion, 
and  that  the  bail  demanded  is  per  se  unreasonably  great  and  clearly 
disproportionate  to  the  offense  involved.  (Ex  parte  Ruef,  7  Cal.  App. 
750,  96  Pac.  24.) 

It  is  within  the  power  of  the  state  to  abolish  the  grand  jury  and 
authorize  the  procedure  to  punish  crimes  by  information.  (People  v. 
Lewis,  9  Cal.  App.  279,  98  Pac.  1078.) 

When  a  defendant  before  the  impaneling  of  a  grand  jury  has  been 
given  an  opportunity  to  examine  the  prospective  grand  jurors  touch- 
ing their  qualifications,  the  court  may  refuse  to  permit  him  to  go  over 
the  same  ground  on  a  motion  to  set  aside  the  indictment.  (Borello 
v.  Superior  Court,  8  Cal.  App.  215,  96  Pac.  404.) 

A  person  who  has  not  been  held  to  answer,  but  who  may  be  accused 
of  a  public  offense  and  who  may  be  indicted  by  the  grand  jury,  is 
not  entitled  to  examine  the  individual  grand  jurors  before  they  are 
impaneled  and  sworn  touching  their  qualifications  to  inquire  into  and 
act  upon  his  case.  (Borello  v.  Superior  Court,  8  Cal.  App.  215,  96 
Pac.  404.) 

When  an  information  has  been  filed,  prohibition  will  not  lie  on  the 
ground  that  the  defendant  has  not  had  a  preliminary  examination. 
(Western  Meat  Co.  v.  Superior  Court,  9  Cal.  App.  538,  99  Pac.  976.) 

Upon  the  filing  of  an  information  the  presumption  arises  that  the 
accused  has  been  given  the  preliminary  hearing  by  a  magistrate. 
(Western  Meat  Co.  v.  Superior  Court,  9  Cal.  App.  538,  99  Pac.  976.) 

An  information  may  be  filed  by  the  district  attorney,  although  the 
grand  jury  is  in  session.  (People  v.  Lewis,  9  Cal.  App.  279,  98  Pac. 
1078.) 

A  grand  jury  does  not  lack  jurisdiction  to  find  an  indictment  merely 
because  some  of  its  members  are  disqualified.  (Kitts  v.  Superior 
Court,  5  Cal.  App.  462,  90  Pac.  977.) 

A  member  of  the  grand  jury  who  lacks  the  qualifications  provided 
by  law,  is  a  de  facto  officer  and  the  acts  of  the  jury  are  not  invali- 
dated.    (Kitts  V.  Superior  Court,  5  Cal.  App.  462,  90  Pac.  977.) 

An  indictment  can  be  set  aside  by  reason  of  the  disqualification  of 
jurors  only  for  the  reasons  specified  by  the  Penal  Code.  (Kitts  v. 
Superior  Court,  5  Cal.  App.  462,  90  Pac.  977.) 

When  a  person  is  indicted  by  a  grand  jury  he  has  no  opportunity 
to  question  the  qualifications  of  the  jurors,  except  by  motion  to  set 
aside  the  indictment.  (Kitts  v.  Superior  Court,  5  Cal.  App.  462,  90 
Pac.  977.) 


Art.  I,  §  9  CONSTITUTION  OF  1879.  140 

Section  1008  of  the  Penal  Code,  which  permits  an  indictment  to  be 
amended  by  the  district  attorney  as  to  mere  matters  of  form,  is  con- 
stitutional.    (People  V.  Anthony,  20  Cal.  App.  586,  129  Pac.  968.) 

Constitutionality    of    statutes    permitting    amendment    of   indict- 
ments.    See  note,  3  Ann.  Cas.  558. 

The  phrase,  "offenses  heretofore  required  to  be  prosecuted  by  in- 
dictment," in  this  section,  re-enacted  the  rule  of  the  old  Constitution 
that  capital  or  other  infamous  crimes  must  be  prosecuted  by  indict- 
ment, and  the  same  offenses  as  were  required  under  it  to  be  prose- 
cuted by  indictment  are  still  required  to  be  so  prosecuted  except 
where  the  new  procedure  permits  in  addition  to  indictment,  proceed- 
ing by  information  after  examination  and  commitment  by  a  magis- 
trate.    (In  re  Westenberg,  167  Cal.  309,  139  Pac.  674.) 

Under  this  section  a  prosecution  for  criminal  libel  is  not  required 
to  be  by  indictment.  (Matter  of  Application  of  Westenberg,  167 
Cal.  309,"^  139  Pac.  674.) 

Under  this  section  of  Constitution  of  1849  the  only  offenses  re- 
quired to  be  prosecuted  by  indictment  were  capital  or  other  infamous 
crimes,  and  criminal  libel  was  not  among  them.  (In  re  Westenberg, 
167  Cal.  309,  139  Pac.  674.) 

Liberty  of  speech  and  freedom  of  the  press — Trials  for  libel. 

Sec.  9.  Every  citizen  may  freely  speak,  write  and  pub- 
lish his  sentiments  on  all  subjects,  being  responsible  for  the 
abuse  of  that  right;  and  no  law  shall  be  passed  to  restrain 
or  abridge  the  liberty  of  speech  or  of  the  press.  In  all 
criminal  prosecutions  for  libels,  the  truth  may  be  given  in 
evidence  to  the  jury ;  and  if  it  shall  appear  to  the  jury  that 
the  matter  charged  as  libelous  is  trijB,  and  was  published 
with  good  motives  and  for  justifiable  ends,  the  party  shall 
be  acquitted ;  and  the  jury  shall  have  the  right  to  determine 
the  law  and  the  fact.  Indictments  found,  or  information 
laid,  for  publication  in  newspapers  shall  be  tried  in  the 
county  where  such  newspapers  have  their  publication  office, 
or  in  the  county  where  the  party  alleged  to  be  libeled  re- 
sided at  the  time  of  the  alleged  publication,  unless  the  place 
of  trial  shall  be  changed  for  good  cause. 

LIBERTY  OF  THE  PRESS. — This  provision  does  not  make  all  pub- 
lications in  a  newspaper  privileged.  (Gilman  v.  McClatchy,  111  Cal. 
G06,  44  Pac.  241.) 

The  liberty  of  the  press  is  not  more  under  the  protection  of  the  Con- 
stitution than  the  liberty  of  speech,  and  the  publishers  of  a  news- 
paper can  defend  an  action  tor  libel  only  upon  precisely  the  same 
grounds  upon  which  any  other  individual  could  defend  an  action  for 
slander.  (Edwards  v.  San  Jose  etc.  Publishing  Soc,  99  Cal.  431,  37 
Am.  St.  Eep.  70,  34  Pac.  128.) 


141  DECLARATION    OF   RIGHTS.  Art.  I,  §  10 

A  court  has  power  to  punish  as  a  contempt  a  publication  charging 
a  judge  with  "deliberate  lying  about  the  law,"  etc.,  in  a  case  before 
him.     (Ex  parte  Barry,  85  Cal.  603,  20  Am.  St.  Eep.  248,  25  Pac.  256.) 

Under  this  section  a  court  has  no  power  to  forbid  the  representa- 
tion upon  the  theatrical  stage  of  the  facts  of  a  criminal  case,  pending 
the  trial  o-f  such  case.  (Dailey  v.  Superior  Court,  112  Cal.  94,  53  Am. 
St.  Eep.  160,  32  L.  R.  A.  273,  44  Pac.  458.) 

It  is  proper  for  the  court  to  inform  the  jury  as  to  the  rules  of  evi- 
dence, and  the  law  applicable  to  the  case,  and  to  tell  them  that  they 
should  go  contrary  to  the  instructions  of  the  court  only  when  they  have 
a  deep  and  confident  conviction  that  the  court  is  wrong,  and  that 
they  are  right.     (People  v.  Seeley,  139  Cal.  118,  72  Pac.  834.) 

The  last  sentence  of  this  section  applies  to  the  case  of  a  person  who 
causes  a  libel  to  be  published  in  a  newspaper,  as  well  as  to  a  publica- 
tion by  the  publishers  and  proprietors  alone.  (In  re  Kowalsky,  73 
Cal.  120,  14  Pac.  399.) 

Infringing  liberty  of  the  press.     See  note,  78  Am.  St.  Rep.  260. 
Constitutional  liberty   of  speech   and  press.     S«e   notes,   15   Ann. 

Cas.  3;  6  R.  C.  L.,  §§  239-242a,  pp.  253-258. 
Venue  of  action  for  libel  or  slander.     See  note,  6  Ann.  Cas.  513. 

"Good  cause,"  within  the  meaning  of  the  last  sentence  of  this  sec- 
tion, is  that  set  forth  in  section  1033  of  the  Penal  Code.  The  provi- 
sion is  not  self-executing  and  confers  no  enlarged  discretion  upon  the 
court.     (Older  v.  Superior  Court,  157  Cal.  770,  109  Pac.  478.) 

The  provisions  of  this  section  and  of  section  251  of  the  Penal  Code 
that  in  the  trial  of  a  case  of  criminal  libel  the  jury  shall  have  the 
right  to  determine  the  law  and  the  fact  does  not  take  away  from 
the  court  the  right  to  rule  upon  the  admissibility  of  evidence  during 
the  trial.     (People  v.  Pryal,  25  Cal.  App.  779,  147  Pac.  114.) 

General  rules  applicable  to  libel  and  slander.     See  note,  4  Am. 

Dec.  348. 
Justification  in  actions  for  libel  or  slander.     See  note,  91  Am.  St. 

Rep.  285. 
Province  of  court  and  jury  in  prosecutions  for  libel.     See  note,  13 

Am.  St.  Rep.  625. 
Jury  as  judge  of  law  and  fact.     See  note,  42  Am.  St.  Rep.  290. 
Truth  alone  as  complete   defense  in  civil  action  for  libel.     See 
note,  17  Ann.  Cas.  761. 

Popular  assemblies. 

Sec.  10.  The  people  shall  have  the  right  to  freely  assem- 
ble together  to  consult  for  the  common  good,  to  instruct 
their  representatives,  and  to  petition  the  legislature  for 
redress  of  grievances. 

RIGHT  TO  FREELY  ASSEMBLE.— This  section  does  not  prevent 
the  legislature  from  forbidding  unlawful  assemblies.  As  to  what  are 
such  assemblies,  see  People  v.  Most,  128  N.  Y.  108,  26  Am.  St.  Rep. 


Art.  I,  §  11  CONSTITUTION  OP  1879.  142 

458,  27  N.  E.  970;  Eex  v.  Birt,  5  Car.  &  P.  154;  Regina  v.  Neale,  9 
Car.  &  P.  431;  Beatty  v.  Gillbanks,  9  Q.  B.  Div.  308. 

Right   to    assemble   and   petition   government.     See   6   E.    C.   L., 

§  236,  p.  250. 

Uniformity  of  laws. 

Sec.  11.  All  laws  of  a  general  nature  shall  have  a  uni- 
form operation. 

UNIFORMITY  OF  LAWS.— This  provision  does  not  affect  laws  in 
force  at  the  adoption  of  the  Constitution;  and,  therefore,  while  sec- 
tion 204  of  the  Code  of  Civil  Procedure,  relating  to  the  impaneling 
of  grand  jurors,  might  have  been  void  under  this  provision,  a  mere 
amendment  to  that  section,  making  it  applicable  to  the  present  judi- 
cial system,  does  not  make  it  unconstitutional.  (People  v.  Currant, 
116  Cal.  179,  48  Pac.  75.) 

General  Principles. — The  word  "uniform"  does  not  mean  "univer- 
sal." (People  V.  Twelfth  District  Court,  17  Cal.  547;  Hellman  v. 
Shoulters,  114  Cal.  136,  44  Pac.  915,  45  Pac.  1057;  In  re  Zhizhuzza,  147 
Cal.  328,  81  Pac.  955.) 

All  that  is  necessary  to  constitute  uniformity  is  that  the  law  shall 
operate  uniformly  upon  all  persons  in  the  same  category,  and  upon 
rights  and  things  in  the  same  relation.  (People  v.  Henshaw,  76  Cal. 
436,  18  Pac.  413;  People  v.  Twelfth  District  Court,  17  Cal.  547;  Ex 
parte  Halsted,  89  Cal.  471,  26  Pac.  961;  Wigmore  v.  Buell,  122  Cal. 
144,  54  Pac.  600.) 

A  statute  is  uniform  in  its  operation  if  it  applies  alike  to  all  per- 
sons or  objects  within  a  class  founded  upon  some  natural,  intrinsic,  or 
constitutional  distinction.  (Vail  v.  San  Diego  Co.,  126  Cal.  35,  58 
Pac.  392;  Solano  Co.  v.  McCudden,  120  Cal.  648,  53  Pac.  213;  Cody  v. 
Murphey,  89  Cal.  522,  26  Pac.  1081;  Kahn  v.  Sutro,  114  Cal.  316,  33 
L.  E.  A.  620,  46  Pac.  87;  Murphy  v.  Pacific  Bank,  119  Cal.  334,  it 
Pac.  317;  Ruperich  v.  Baehr,  142  Cal.  190,  75  Pac.  782.) 

The  meaning  of  this  provision  is  that  the  legislature  shall  not  grant 
to  any  citizen  or  class  of  citizens  privileges  or  immunities  which  upon 
the  same  terms  shall  not  equally  belong  to  all  citizens.  (Ex  parte 
Smith  &  Keating,  38  Cal.  702;  Miller  v.  Kister,  68  Cal.  142,  8  Pac.  813; 
People  V.  Henshaw,  76  Cal.  436,  18  Pac.  413;  Brooks  v.  Hyde,  37  Cal. 
366.) 

The  operation  of  a  law  is  none  the  less  uniform  because  it  operates 
differently  upon  different  classes,  provided  there  is  a  reasonable  basis 
tor  the  lack  of  uniformity,  and  the  corporation  license  tax  act  is  not 
invalid  because  failure  of  payment  by  a  California  corporation  results 
in  a  forfeiture  of  its  charter,  while  nonpayment  by  a  foreign  corpora- 
tion results  in  a  forfeiture  of  its  right  to  do  business  within  the  state. 
(Kaiser  Land  &  Fruit  Co.  v.  Curry,  155  Cal.  638,  103  Pac.  341.) 

This  provision  has  no  application  to  municipal  ordinances.  (In  re 
Zhizhuzza,  147  Cal.  328,  81  Pac.  955.) 

This  section  of  Constitution  of  1849  did  not  prohibit  the  granting 
of  rights  of  way  along  waters,  roads  and  highways  to  telegraph  com- 


143  DECLARATION    OF   RIGHTS.  Art.  I,  §  11 

panics.     (Western  Union  Telegraph  Co.  v.  Hopkins,  160  Cal.  106,  116 
Pac.  557.) 

This  section  of  the  Constitution  of  1849  did  not  forbid  special 
legislation  nor  the  conferring  of  special  powers  upon  municipalities 
by  their  charters,  even  when  there  was  a  general  law  upon  the  same 
subject  matter.  (Vallejo  Ferry  Co.  v.  Lang  &  McPherson,  161  Cal. 
672,  120  Pac.  421.) 

Quaere,  as  to  whether  section  629  of  the  Civil  Code,  making  it  the 
duty  of  certain  public  service  corporations  to  furnish  gas,  electricity, 
steam  or  heat,  on  demand,  is  constitutional.  (Thompson  v.  San  Fran- 
cisco Gas  etc.  Co.,  18  Cal.  App.  30,  121  Pac.  937.) 

Special  laws. — It  is  only  laws  of  a  general  nature  that  are  required 
to  have  a  uniform  operation,  and  this  section  does  not  forbid  special 
laws.  (People  v.  Central  Pac.  R.  R.  Co.,  43  Cal.  398;  Brooks  v.  Hyde, 
37  Cal.  366;  Addison  v.  Saulnier,  19  Cal.  82;  People  v.  Twelfth  Dis- 
trict Court,  17  Cal.  547.) 

Particular  acts  held,  not  to  be  uniform. — In  conformity  with  these 
principles,  the  tollowing  statutes  have  been  held  void  as  not  uniform 
in  their  operation: 

A  provision  of  the  County  Government  Act  that,  in  counties  of  a 
certain  designated  population,  county  licenses  collected  in  cities  shall 
be  paid  into  the  treasuries  of  such  cities  for  street  improvements  (San 
Luis  Obispo  Co.  v.  Graves,  84  Cal.  71,  23  Pac.  1032);  an  act  authoriz- 
ing a  named  street  railway  company  to  operate  a  street  railway  on 
designated  streets  (Omnibus  R.  R.  Co.  v.  Baldwin,  57  Cal.  160);  a 
a  provision  of  the  Insolvency  Act,  giving  a  right  of  appeal  in  cases 
of  contempt — a  right  not  given  in  other  cases  of  contempt  (Ex  parte 
Clancy,  90  Cal.  553,  27  Pac.  411);  a  law  requiring  cities  of  two  desig- 
nated classes  to  make  an  effort  to  agree  with  the  owners  of  land 
sought  to  be  condemned,  before  instituting  condemnation  proceed- 
ings (City  of  Pasadena  v.  Stimson,  91  Cal.  238,  27  Pac.  604);  a 
provision  of  the  County  Government  Act  of  1883,  that  the  boards 
of  supervisors  of  counties  of  certain  designated  classes  may  allow 
county  officers  a  deputy  whenever  in  the  opinion  of  such  board 
the  salaries  of  such  officers  are  insufficient  (Dougherty  v.  Austin, 
94  Cal.  601,  16  L.  R.  A.  161,  28  Pac.  834,  29  Pac.  1092);  the  pro- 
vision of  the  Australian  ballot  law  for  the  voting  of  straight  tickets 
by  stamping  the  ticket  opposite  the  name  of  the  political  party  to  be 
printed  at  the  head  of  the  ticket  (Eaton  v.  Brown,  96  Cal.  371,  31  Am. 
St.  Rep.  225,  17  L.  R.  A.  697,  31  Pac.  250);  an  act  providing  that  in 
cities  having  boards  of  education,  the  city  treasurers  are  to  have  the 
custody  of  the  state  and  county  school  money  appropriated  to  the 
city  (Bruch  v.  Colombet,  104  Cal.  347,  38  Pac.  45);  a  provision  in  thp 
County  Government  Act  that,  in  counties  of  one  particular  class  only, 
witnesses  in  criminal  cases  shall  be  paid  the  same  fees  as  jurors,  in 
the  discretion  of  the  judge  (Turner  v.  Siskiyou  Co.,  109  Cal.  332,  42 
Pac.  434);  a  provision  of  the  County  Government  Act  that,  in  all 
counties  of  one  particular  class,  certain  additional  fees  shall  be  col- 
lected for  filing  the  inventory  in  estates  of  deceased  persons  (Bloss  v. 
Lewis,  109  Cal.  493,  41  Pac.  1081);  the  Primary  Election  Law  of 
1895,  being  confined  in  its  operation  to  counties  of  the  first  and  second 


Art.  I,  §  11  CONSTITUTION  OF  1879.  144 

class  (Marsh  v.  Hanly,  111  Cal.  368,  43  Pae.  975);  a  law  giving  the 
district  attorney  supervisory  control  over  fees  of  justices  of  the  peace 
and  constables  in  criminal  cases  (Dwyer  v.  Parker,  115  Cal.  544,  47 
Pac.  372);  an  act  fixing  different  rates  of  liability  upon  stockholders 
in  different  corporations  (French  v.  Teschemaker,  24  Cal.  518) ;  the 
provision  of  the  County  Government  Act  that  no  supplies,  etc.,  shall 
be  purchased  for  the  county  from  any  person  who  has  not  had  a 
business  in  the  county  for  a  year  prior  to  the  purchase  (Van  Har- 
lingen  v.  Doyle,  134  Cal.  53,  54  L.  R.  A.  771,  66  Pac.  44);  the  provi- 
sion of  section  1197  of  the  Political  Code  forbidding  the  name  of  a 
nominee  to  be  placed  upon  the  ballot  more  than  once  (Murphy  v. 
Curry,  137  Cal.  479,  59  L.  R.  A.  97,  70  Pac.  461) ;  a  statute  providing 
that  all  county  printing  must  be  let  to  persons  who  have  been  estab- 
lished in  business  in  the  county  for  more  than  one  year  (Van  Har- 
lingen  v.  Doyle,  134  Cal.  53,  54  L.  R.  A.  771,  66  Pae.  44);  the  act  of 
March  21,  1905,  regarding  rates  of  interest  on  chattel  mortgages,  and 
fixing  a  different  penalty  for  its  violation  when  committed  by  cor- 
porations than  when  committed  by  individuals  (Ex  parte  Sohncke,  148 
Cal.  262,  113  Am.  St.  Rep.  236,  7  Ann.  Cas.  475,  2  L.  R.  A.  (N.  S.) 
813,  82  Pac.  956);  a  law  regulating  the  rate  of  interest  on  chattel 
mortgages  on  certain  classes  of  property  (Ex  parte  Sohncke,  148 
Cal.  262,  113  Am.  St.  Rep.  236,  7  Ann.  Cas.  475,  2  L.  R.  A.  (N.  S.) 
813,  82  Pac.  956). 

Particular  acts  held  valid. — On  the  other  hand,  the  following  acts 
have  been  held  not  to  be  obnoxious  to  the  provision  of  this  section, 
and  valid: 

An  act  whose  object  it  is  to  legalize  the  assessment  of  taxes  in  San 
Francisco,  since  it  is  not  a  general,  but  a  special,  law  (San  Francisco 
v.  Spring  Valley  Water  Works,  54  Cal.  571);  an  act  establishing  dif- 
ferent fee  bills  for  separate  counties,  not  being  of  a  general  nature 
(Ryan  v  Johnson,  5  Cal.  86);  an  act  to  remedy  the  failure  of  the  tax 
collector  to  publish  the  names  of  the  owners,  etc.,  it  being  not  a  gen- 
eral, but  a  special,  law  (Moore  v.  Patch,  12  Cal.  265) ;  the  provision 
of  the  County  Government  Act  of  1893,  empowering  certain  of  the 
county  officers  in  counties  of  one  class  to  appoint  a  certain  number  of 
deputies,  whose  salaries  are  fixed  by  the  act  and  made  payable  out  of 
the  county  treasury,  although  in  other  counties  the  principal  must 
pay  the  salaries  of  his  deputies  (Tulare  Co.  v.  May,  118  Cal.  303,  50 
Pac.  427,  overruling  Welsh  v.  Bramlet,  98  Cal.  219,  33  Pac.  66,  and 
Walser  v.  Austin,  104  Cal.  128,  37  Pac.  869);  an  act  subjecting  tres- 
passing animals  to  attachment  without  the  affidavit  required  in  other 
cases  of  attachment  (Wigmore  v.  Buell,  122  Cal.  144,  54  Pac.  600);  a 
law  providing  that  assessors  in  counties  of  one  particular  class  shall 
pay  all  percentage  for  the  collection  of  poll  taxes  into  the  county 
treasury  (Summerland  v.  Bicknell,  111  Cal.  567,  44  Pac.  232);  an  act 
providing  for  police  courts  in  all  cities  of  a  designated  population, 
and  providing  that  it  shall  go  into  effect  upon  the  expiration  of  the 
term  of  office  of  the  present  police  judges  of  such  cities  (People  v. 
Heushaw,  76  Cal.  436,  18  Pac.  413);  an  act  providing  for  the  commit- 
ment of  minor  criminals  to  nonsectarian  charitable  corporations  at 
the  expense  of  the  county  (Boys'  and  Girls'  Aid  Society  v.  Reis,  71 


145  DECLARATION    OF   RIGHTS.  Art.  I,  §  H 

Cal.  627,  12  Pac.  796);  an  ordinance  prohibiting  public  laundries  in 
designated  parts  of  a  city  (In  re  Hang  Kie,  69  Cal.  149,  10  Pac.  327); 
an  ordinance  making  it  unlawful  for  any  person  to  conduct  a  laundry 
within  certain  limits  without  a  certificate  from  the  fire  wardens  as  to 
the  condition  of  the  heating  appliances,  and  forbidding  the  operation 
of  any  laundry  between  10  P.  M.  and  6  A.  M.,  or  on  Sunday  (Ex  parte 
Moynier,  65  Cal.  33,  2  Pac.  728) ;  an  act  making  it  unlawful  to  keep 
open  any  place  of  business  on  Sundays,  except  barber-shops,  bath- 
houses and  hairdressing  saloons  (Ex  parte  Burke,  59  Cal.  6,  43  Am. 
Rep.  231);  the  Revenue  Act  of  1853,  since  the  legislature  may  dis- 
criminate in  the  imposition  of  taxes  on  certain  classes  of  perso-ns, 
occupations  or  species  of  property,  taxing  some  and  exempting  others 
(People  V.  Coleman,  4  Cal.  46,  60  Am.  Dec.  581);  an  act  prohibiting 
all  persons,  except  innkeepers  and  the  like,  from  keeping  open  their 
places  of  business  on  Sundaj's  for  the  transaction  of  business  (Ex 
parte  Andrews,  18  Cal.  678);  a  statute  establishing  a  limitation  upon 
actions  for  the  recovery  of  lands  in  San  Francisco  under  the  Van  Ness 
Ordinance  (Brooks  v.  Hyde,  37  Cal.  366);  an  ordinance  making  it  un- 
lawful to  play  upon  any  musical  instrument  in  any  saloon,  etc.,  after 
midnight,  and  for  any  female  to  be  in  any  saloon,  etc.,  after  midnight 
(Ex  parte  Smith  &  Keating,  38  Cal.  702);  an  act  giving  to  laborers 
working  upon  mines  only  a  lien  for  their  wages  (Quale  v.  Moon,  4S 
Cal.  478);  a  state  revenue  law  making  different  provisions  in  the  dif- 
ferent counties  with  regard  to  the  eSforeement  of  the  payment  of 
delinquent  taxes  (People  v.  Central  Pac.  R.  R.  Co.,  43  Cal.  398);  the 
provisions  of  section  1373  of  the  Political  Code,  making  the  county 
in  which  the  indictment  was  found  chargeable  with  the  support  of 
insane  criminals  (Napa  State  Hospital  v.  Yuba  County,  138  Cal.  378, 
71  Pac.  450);  an  act  providing  that  in  divorce  suits  the  final  decree 
shall  not  be  entered  until  the  expiration  of  one  year  from  the  filing 
of  the  decision  (Deyoe  v.  Superior  Court,  140  Cal.  476,  98  Am.  St. 
Rep.  73,  74  Pac.  28);  the  act  regulating  the  practice  of  medicine  and 
surgery  (Ex  parte  Gerino,  143  Cal.  412,  66  L.  R.  A.  249,  77  Pac.  166); 
the  case  of  Abeel  v.  Clark,  84  Cal.  226,  24  Pac.  383,  approved  as  to 
the  constitutionality  of  an  "act  to  encourage  and  provide  for  general 
vaccination  in  the  state  of  California"  (French  v.  Davidson,  143  Cal. 
658,  77  Pac.  663);  an  act  making  it  unlawful  to  buy  or  sell  quail  (Ex 
parte  Kenneke,  136  Cal.  527,  89  Am.  St.  Rep.  177,  69  Pac.  261);  the 
act  providing  for  the  application  of  the  salaries  of  public  officers  to 
the  payment  of  their  debts  (Ruperich  v.  Baehr,  142  Cal.  190,  75  Pac. 
782);  the  act  in  regard  to  the  practice  of  architecture  (Ex  parte 
McMamis,  151  Cal.  331,  90  Pac.  702);  the  provision  of  the  child  labor 
law  permitting  the  employment  of  children  in  certain  cases  where 
they  can  "read  English  at  sight  and  write  simple  English  sentences" 
(In  re  Spencer,  149  Cal.  396,  117  Am.  St.  Rep.  137,  9  Ann.  Cas.  1105, 
86  Pac.  896);  section  246  of  the  Penal  Code,  providing  the  death  pen- 
alty for  any  person  undergoing  a  life  sentence  who  commits  an  assault 
with  a  deadly  weapon  (People  v.  Finley,  153  Cal.  59,  94  Pac.  248; 
People  V.  Carson,  155  Cal.  164,  99  Pac.  970);  the  act  of  1905,  creat- 
ing the  "Sacramento  Drainage  District,"  as  the  subject  matter  of  the 
act  required  a  special  law   (People  v.  Sacramento  Drainage  District^ 

Constitution — 10 


Art.  I,  §  11  CONSTITUTION  OF  1879,  146 

155  Cal.  373,  103  Pac.  207);  "an  act  to  prohibit  the  sale  of  intoxicat- 
ing liquors  within  a  certain  distance  of  any  camp  or  assembly  of 
men,  numbering  twenty-five  or  more,  engaged  upon  the  construction, 
repair  or  operation  of  any  public  work,  improvement,  or  utility" 
(Stats.  1909,  p.  722)  (Ex  parte  King,  157  Cal.  161,  106  Pac.  578); 
"an  act  to  amend  section  4243  of  the  Political  Code  of  the  state  of 
California,  relating  to  the  compensation  and  expenses  of  officers  in 
counties  of  the  fourteenth  class"  (Stats.  1900,  p.  322)  (Crockett  v. 
Mathews,  157  Cal.  153,  106  Pac.  575);  an  act  to  provide  for  laying 
out,  opening,  extending,  widening,  etc.,  any  street,  etc.  (Stats.  1889, 
p.  70)  (Clute  V.  Turner,  157  Cal.  73,  106  Pac.  240);  section  710  of  the 
Code  of  Civil  Procedure,  providing  for  the  garnishment  of  the  salaries 
of  certain  public  officers  at  the  instance  of  their  judgment  creditors 
(Lawson  v.  Lawson,  158  Cal.  446,  111  Pac.  354);  a  law  prohibiting 
waste  of  water  from  artesian  wells  (Ex  parte  Elam,  6  Cal.  App.  233, 
91  Pac.  811);  an  ordinance  prohibiting  the  wholesale  liquor  business 
within  a  designated  ar?a  in  a  municipality  (Grumbach  v.  Lelande,  154 
Cal.  679,  98  Pac.  1059);  the  act  of  1909,  regulating  loan  brokers  and 
limiting  rates  of  interest  (Eaker  v.  Bryant,  24  Cal.  App.  87,  140  Pac. 
310);  section  172a  of  the  Penal  Code,  prohibiting  the  selling  of  liquor 
near  university  grounds  of  any  university  of  more  than  one  thousand 
students  (Matter  of  Petition  of  Burke,  160  Cal.  300,  116  Pac.  755); 
an  act  forbidding  the  employment  of  women  for  more  than  eight 
hours  a  day  in  certain  places  (Matter  of  Application  of  Miller,  162 
Cal.  687,  124  Pac.  427;  affirmed  in  Miller  v.  Wilson,  236  U.  S.  373,  59 
L.  Ed.  628,  35  Sup.  Ct.  Eep.  342) ;  an  act  providing  for  the  payment 
by  the  state,  county  or  city  of  the  premium  on  official  bonds  of  all 
state,  county  or  city  officers  (except  notaries  public)  when  given  by 
surety  companies  (County  of  San  Luis  Obispo  v.  Murphy,  162  Cal. 
588,  Ann.  Cas.  1913D,  712,  123  Pac.  808;  County  of  San  Luis  Obispo 
V.  Smith,  21  Cal.  App.  55,  130  Pac.  838) ;  an  act  authorizing  the  re- 
spective counties  and  municipalities  of  the  state  to  appoint  sealers 
of  weights  and  measures  (Scott  v.  Boyle,  164  Cal.  321,  128  Pac.  941); 
sections  1670  and  1671  of  the  Political  Code,  as  they  existed  prior  to 
the  amendments  of  1909,  exempting  the  property  in  a  union  high 
school  district  from  taxation  for  the  support  of  a  county  high  school 
(Wood  v.  County  of  Calaveras,  164  Cal.  398,  129  Pac.  283);  an  act 
relating  to  the  responsibility  of  employers  for  injuries  to  or  death 
of  employees  (Pritchard  v.  Whitney  Estate  Co.,  164  Cal.  564,  129  Pac. 
989);  an  act  concerning  actions  for  libel  and  slander  which  allows 
either  party  prevailing  in  such  actions  to  recover  as  costs  one  hun- 
dred dollars  to  cover  counsel  fees  (Engel  v.  Ehret,  21  Cal.  App.  112, 
130  Pac.  1197);  the  Tenement  House  Act  regulating  the  construction 
of  buildings  intended  for  human  habitation  and  providing  that  such 
buildings  shall  not  be  occupied  until  the  issuance  of  certain  certifi- 
cates by  the  health  and  building  departments  (Matter  of  Stolten- 
berg,  21  Cal.  App.  722,  132  Pac.  841);  the  Medical  Practice  Act  of 
1911  (Bohannon  v.  Board  of  Medical  Examiners,  24  Cal.  App.  215,  140 
Pac.  1089);  section  636^  of  Penal  Code  prohibiting  the  use  of  cer- 
tain kinds  of  nets  in  fishing  (Matter  of  Application  of  Mascolo,  25 
Cal.  App.  92,  142  Pac.  903). 


147  DECLARATION  OF  RIGHTS,  Art.  I,  §§  12,  13 

As  to  the  uniform  operation  of  the  County  Government  Act,  which 
goes  into  effect  at  different  times  as  to  different  counties,  see  Fre- 
man  v.  Marshall,  137  Cal.  159,  69  Pac.  986. 

What  is  a  general  law.     See  note,  21  Am.  St.  Rep.  780. 
Inhibition  of  local  or  special  law  where  general  law  can  be  made 

applicable.     See  note,  93  Am.  St.  Rep.  106. 
Discrimination    in   favor   of    soldiers    or   veterans.     See    note,    82 

Am.  St.  Rep.  529,  117  Am.  St.  Rep.  891. 
Fourteenth  amendment  considered  with  relation  to  special  privi- 
leges, burdens  and  restrictions.     See  note,  25  Am.  St.  Rep.  870. 
Equal  privileges  and  immunities.     See  note,  14  L.  R.  A.  579. 

Military  power. 

Sec.  12.  The  military  shall  be  subordinate  to  the  civil 
power.  No  standing  army  shall  be  kept  up  by  this  state  in 
time  of  peace,  and  no^oldier  shall,  in  time  of  peace,  be 
quartered  in  any  house  without  the  consent  of  the  owner; 
nor  in  time  of  war,  except  in  the  manner  prescribed  by  law. 

Personal  and  property  rights. 

Sec.  13.  In  criminal  prosecutions,  in  any  court  what- 
ever, the  party  accused  shall  have  the  right  to  a  speedy  and 
public  trial ;  to  have  the  process  of  the  court  to  compel  the 
attendance  of  witnesses  in  his  behalf,  and  to  appear  and 
defend,  in  person  and  with  counsel.  No  person  shall  be 
twice  put  in  jeopardy  for  the  same  offense;  nor  be  com- 
pelled, in  any  criminal  case,  to  be  a  witness  against  himself ; 
nor  be  deprived  of  life,  liberty,  or  property  Avithout  due 
process  of  law.  The  legislature  shall  have  power  to  provide 
for  the  taking,  in  the  presence  of  the  party  accused  and  his 
counsel,  of  depositions  of  witnesses  in  criminal  cases,  other 
than  cases  of  homicide,  when  there  is  reason  to  believe  that 
the  witness,  from  inability  or  other  cause,  will  not  attend 
at  the  trial. 

SPEEDY  TRIAL. — Section  1382  of  the  Penal  Code  is  mandatory, 
and  the  court  has  no  discretion  to  deny  the  defendant  a  speedy  trial 
as  provided  by  that  section.  (People  v.  Morino,  85  Cal.  515,  24 
Pac.  892;  In  re  Ford,  160  Cal.  334,  116  Pac.  757;  Ford  v.  Superior 
Court,  17  Cal.  App.  1,  118  Pac.  96.) 

An  accused  person  held  in  custody  an  unreasonable  length  of  time 
without  trial  will  be  discharged  upon  habeas  corpus.  (In  re  Begerow, 
133  Cal.  349,  85  Am.  St.  Rep.  178,  56  L.  R.  A.  513,  65  Pac.  828;  Peo- 
ple v.  Moran,  144  Cal.  48,  77  Pac.  777.) 


Art.  I,  §  13  CONSTITUTION  OF  1879.  148 

When  good  cause  is  shown  for  the  delay,  a  dismissal  will  not  be 
ordered  when  the  trial  has  been  delayed  more  than  sixty  days.  (Peo- 
ple V.  Moran,  144  Cal.  48,  77  Pac.  777.) 

Pronouncing  judgment  is  no  part  of  the  trial,  and  the  constitutional 
right  to  a  speedy  trial  is  not  violated  by  a  delay  of  thirty-five  days 
in  pronouncing  judgment.  (People  v.  Stokes,  5  Cal.  App.  205,  89 
Pac.  997.) 

Eight  to  speedy  trial.     See  notes,  41  Am.  Dec.  604;  17  Ann.  Cas. 

170;   8  R.  C.  L.,  §§  24-28,  pp.  70-75. 
Speedy  trial  of  persons  accused  of  crime,  and  what  amounts  to 
denial  of.     See  note,  85  Am.  St.  Eep.  187. 

PUBLIC  TErlAIi. — The  word  "public"  is  used  in  this  section  in  op- 
position to  the  word  "secret."  (People  v.  Swafford,  65  Cal.  223,  3 
Pac.  809.) 

The  trial  should  be  public  in  the  ordinary,  common-sense  accepta- 
tion of  the  term,  the  doors  should  be  open,  the  public  admitted  with 
due  regard  to  the  size  of  the  courtroom,  the  conveniences  of  the  court, 
the  right  to  exclude  objectionable  characters  and  youths  of  tender 
years,  and  to  do  other  things  which  may  facilitate  the  proper  conduct 
of  the  trial.  (People  v.  Hartman,  103  Cal.  242,  42  Am.  St.  Eep.  108, 
37  Pac.  153.) 

An  order  excluding  from  the  courtroom  all  persons  except  the  offi- 
cers of  the  court  and  the  defendant  is  in  violation  of  this  provision 
and  is  presumed  to  be  prejudicial.  (People  v.  Hartman,  103  Cal.  242, 
42  Am.  St.  Rep.  108,  37  Pac.  153.  But  see  People  v.  Swafford,  65 
Cal.  223,  3  Pac.  809.) 

Where  a  defendant  during  a  trial  becomes  excited  and  indulges  in 
protane  and  abusive  language,  thus  creating  commotion  among  the 
spectators  and  interrupting  the  trial,  an  order  excluding  from  the 
courtroom  everyone  except  the  officers  of  the  court,  reporters  of  the 
press,  friends  of  the  defendant,  and  persons  necessary  for  him  to 
have  on  his  trial,  is  proper.  (People  v.  Kerrigan,  73  Cal.  222,  14 
Pac.  849.) 

The  defendant  may  waive  the  right  to  a  public  trial.  (People  v. 
Tarbox,  115  Cal.  57,  46  Pac.  896.) 

Eight  to  public  trial  and  what  are  infringements  of.     See  notes, 
28  Am.  St.  Eep.  308;   8  R.  C.  L.,  §§  29-31,  pp.  75-81. 

WITNESSES. — The  legislature  has  power  to  limit  the  compulsory 
attendance  of  prisoners  confined  in  the  state  prison  to  cases  of  neces- 
sity, the  existence  of  which  is  to  be  determined  by  the  court.  (Wil- 
lard  V.  Superior  Court,  82  Cal.  456,  22  Pac.  1120.) 

The  defendant  may  waive  his  right  to  be  confronted  with  the  wit- 
nesses.    (People  v.  Bird,  132  Cal.  261,  64  Pac.  259.) 

A  court  cannot  refuse  to  compel  the  attendance  of  witnesses  from 
an  adjoining  county  merely  because  the  district  attorney  offers  to 
allow  their  testimony  on  a  former  trial  to  be  read.  (People  v.  Bos- 
sert,  14  Cal.  App.  Ill,  111  Pac.  15.) 

A  defendant  is  entitled  to  a  reasonable  time  within  which  to  pro- 
cure the  attendance  of  witnesses.  (People  v.  Bossert,  14  Cal.  App. 
Ill,  111  Pac.  15.) 


149  DECLARATION    OF   RIGHTS.  Art.  I,  §  13 

It  is  the  duty  of  the  court,  when  due  diligence  has  been  used,  and 
it  appears  that  the  application  is  made  in  good  faith,  and  the  evi- 
dence is  material,  to  continue  the  case  for  a  reasonable  time  to  obtain 
an  absent  witness.  (People  v.  Fong  Chung,  5  Cal.  App.  587,  91  Pac. 
105.) 

Right  to  compulsory  process  to  secure  attendance   of  witnesses. 

See  8  E.  C.  L.,  §§  36-38,  pp.  81,  82. 
Eight   tc  be   confronted  by  witnesses.     See   notes,   129   Am.   St. 
Eep.  24;  8  E.  C.  L.,  §§  41-47,  pp.  84-89. 

Subdivision  3,  section  686,  Penal  Code,  as  amended  in  1911,  admit- 
ting the  testimony  of  a  witness,  who  cannot,  with  due  diligence  be 
found  within  the  state,  given  at  a  former  trial  in  the  presence  of  the 
defendant,  who  has  cross-examined  the  witness  or  had  an  opportu- 
nity to  do  so,  is  not  in  conflict  with  this  section.  (People  v.  Wilson, 
26  Cal.  App.  336,  146  Pac.  1048.) 

RIGHT  TO  APPEAR  AND  DEFEND.— This  provision  only  gives 
the  defendant  the  right  to  appear  and  defend  in  person  and  with 
counsel,  and  does  not  give  him  the  right  to  appear  by  counsel  when 
he  is  himself  absent.  Therefore,  when  a  defendant  in  a  criminal  case 
escapes  after  conviction,  and  pending  an  appeal,  the  appeal  will  not 
be  heard  in  his  absence,  but  will  be  dismissed.  (People  v.  Redinger, 
55  Cal.  290,  36  Am.  Eep.  32.) 

When  a  person,  with  the  consent  and  acquiescence  of  the  defendant, 
appears  as  attorney  for  the  defendant,  although  another  attorney  has 
theretofore  appeared,  and  there  is  no  formal  substitution,  the  defend- 
ant cannot  be  heard  to  complain  that  he  has  been  deprived  of  the 
right  to  counsel.     (People  v.  Gamett,  9  Cal.  App.  194,  98  Pac.  247.) 

To  require  a  prisoner  during  the  progress  of  his  trial  to  appear  and 
remain   with   chains   upon   his   limbs,  without  evident   necessity   as   a 
means  of  securing  his  presence  for  judgment,  is  in  violation  of  this 
section.     (People  v.  Harrington,  42  Cal.  165,  10  Am,  Eep.  296.) 
Eight  to  be  free  from  shackles.     See  8  E.  C.  L.,  §  22,  p.  68. 

A  view  of  the  premises  without  the  presence  of  the  defendant  is  in 
violation  of  this  section.     (People  v.  Bush,  68  Cal.  623,  10  Pac.  169.) 

JEOPARDY. — When  a  person  is  placed  on  trial  upon  a  valid  indict- 
ment, before  a  competent  court  and  jury,  he  is  in  jeopardy.  (People 
v.  Cage,  48  Cal.  323,  17  Am.  Eep.  436;  Ex  parte  Hartman,  44  Cal.  32; 
People  V.  Webb,  38  Cal.  467;  Ex  parte  Fenton,  77  Cal.  183,  19  Pac. 
267;  People  v.  Smalling,  94  Cal.  112,  29  Pac.  421.) 

After  he  has  thus  been  put  in  jeopardy,  he  cannot  be  again  tried 
for  the  same  offense  unless  the  jury  is  discharged  from  rendering  a 
verdict  by  a  legal  necessity,  or  by  his  consent;  or,  in  case  a  verdict 
is  rendered,  it  be  set  aside  at  his  instance.  (People  v.  Webb,  38  Cal. 
467;  People  v.  Smalling,  94  Cal.  112,  29  Pac.  421.) 

This  is  true  although  the  judgment  is  arrested  by  the  court  (Ex 
parte  Hartman,  44  Cal.  32);  or  an  acquittal  is  obtained  by  reason  of 
an  erroneous  instruction  (People  v.  Webb,  38  Cal.  467;  People  v.  Rob- 
erts, 114  Cal.  67,  45  Pac.  1016;  People  v.  Horn,  70  Cal.  17,  11  Pac. 
470) ;  or  the  action  is  dismissed  by  the  court  on  the  ground  that  he  is, 


Art.  I,  §  13 


CONSTITUTION   OF   1879. 


150 


in  the  opinion  of  the  court,  guilty  of  a  more  serious  offense  (People  v. 
Ny  Sam  Chung,  94  Cal.  304,  28  Am.  St.  Eep.  129,  29  Pac.  642). 

Where  the  court  is  prohibited  from  pronouncing  judgment  upon  the 
defendant  because  the  indictment  is  invalid,  jeopardy  dses  not  attach. 
(People  V.  Terrill,  133  Cal.  120,  65  Pac.  303.) 

To  hold  a  person  guilty  of  the  crime  of  offering  a  bribe,  and  by 
the  same  act  guilty  of  the  crime  of  being  an  accomplice  to  the  crime 
of  receiving  a  bribe,  would  not  be  allowable.  (People  v.  Bunkers,  2 
Cal.  App.  197,  84  Pac.  364,  370.) 

A  dismissal  of  a  charge  on  motion  of  the  district  attorney  is  not  a 
bar  to  another  prosecution.  (People  v.  Kerrick,  144  Cal.  46,  77  Pac. 
711.) 

When  a  defendant  is  acquitted  because  of  a  variance  between  the 
proof  and  the  indictment,  and  the  variance  is  such  that  a  conviction 
ia  legally  impossible,  he  has  not  been  in  jeopardy.  (People  v.  Me- 
Nealy,  17  Cal.  332;  People  v.  Oreileus,  79  Cal.  178,  21  Pac.  724.) 

A  judgment  rendered  upon  a  plea  of  which  the  court  has  no  juris- 
diction does  not  place  fhe  defendant  in  jeopardy  so  far  as  that  plea 
is  concerned.  (People  v.  Woods,  84  Cal.  441,  23  Pac.  1119;  People 
V.  Hamberg,  84  Cal.  468,  24  Pac.  298.) 

Subdivision  6  of  section  1238  of  the  Penal  Code,  allowing  the  peo- 
ple to  appeal  from  an  order  of  the  court  directing  the  jury  to  find  for 
the  defendant,  is  void,  since  the  defendant  has  been  in  jeopardy. 
(People  V.  Horn,  70  Cal.  17,  11  Pac.  470.) 

The  fact  that  the  defendant  has  been  held  to  answer  by  a  justice 
of  the  peace  and  discharged  does  not  prevent  Mm  from  again  being 
held  to  answer.     (Ex  parte  Cahill,  52  Cal.  463.) 

If  a  demurrer  is  sustained  to  an  information,  without  leave  to 
amend,  it  is  a  bar  to  another  prosecution.  (People  v,  Jordan,  63  Cal. 
219.) 

Where  an  information  is  dismissed  because  it  charges  the  commis- 
sion of  an  offense  subsequent  to  the  date  of  its  filing,  a  plea  of  once 
in  jeopardy  will  not  prevail.  (People  v.  Larson,  68  Cal.  18,  8  Pac. 
517.) 

A  discharge  upon  preliminary  examination  does  not  place  the  de- 
fendant in  jeopardy.     (Ex  parte  Fenton,   77   Cal.   183,  19  Pac.   267.) 

Discharge  of  jury. — If  the  jury  is  discharged  without  the  consent  of 
the  defendant,  except  in  case  of  unavoidable  accident  or  necessity, 
the  defendant  cannot  be  again  prosecuted.  (People  v.  Cage,  48  Cal. 
323,  17  Am.  Eep.  436.) 

Inability  of  the  jury  to  agree  after  a  reasonable  time  for  delibera- 
tion is  an  unavoidable  necessity.  (People  v.  Cage,  48  Cal.  323,  17 
Am.  Rep.  436;  People  v.  Smalling,  94  Cal.  112,  29  Pac.  421;  People  v. 
James,  97  Cal.  400,  32  Pac.  317;  People  v.  Disperati,  11  Cal.  App.  469, 
105  Pac.  617.) 

The  fact  of  such  necessity  cannot  be  impeached  by  extrinsic  evi- 
dence, and  such  discharge  may  be  made  in  the  absence  of  the  defend- 
ant, if  his  presence  is  waived  by  his  counsel.  (People  v.  Smalling, 
94  Cal.  112,  29  Pac.  421.) 

Even  if  the  court  instructed  the  jury  to  acquit,  a  plea  of  once  in 
jeopardy  will  not  prevail  if  the  jury  is  discharged  for  failure  to  agree. 
(People  V.  James,  97  Cal.  400,  32  Pac.  317.) 


151  DECLARATION    OF   RIGHTS.  Art.  I,  §  13 

The  court  cannot  discharge  the  jury  merely  upon  a  report  of  the 
sheriff  that  the  jury  cannot  agree.  (People  v.  Cage,  48  Cal.  323,  17 
Am.  Eep.  436.) 

Where  the  jury  is  discharged  for  failure  to  agree,  it  is  not  neces- 
sary that  the  record  should  show  that  it  satisfactorily  appeared  to 
the  judge  that  there  was  no  reasonable  probability  that  the  jury 
could  agree.     (People  v.  Greene,  100  Cal.  140,  34  Pac.  630.) 

Where  the  defendant  flees  during  the  trial  and  the  jury  is  dis- 
charged, a  plea  of  once  in  jeopardy  has  no  merit.  (People  v,  Hig- 
gins,  59  Cal.  357.) 

Where  the  jury  is  discharged  with  the  consent  of  the  defendant,  a 
plea  of  once  in  jeopardy  will  not  prevail.  (People  v.  Curtis,  76  Cal. 
57,  17  Pac.  941.) 

The  same  is  true  if  the  jury  is  discharged  on  account  of  the  sick- 
ness of  one  of  the  jurors.     (People  v.  Ross,  85  Cal.  383,  24  Pac.  789.) 

But  if  a  defendant  is  indicted  for  manslaughter,  the  court  cannot 
lawfully  discharge  the  jury  because  it  is  of  the  opinion  that  he  is 
guilty  of  murder.     (People  v.  Hunckeler,  48  Cal.  331.) 

Nor  can  the  jury  be  lawfully  discharged  because  it  has  found  a 
verdict  convicting  the  defendant  of  a  crime  not  included  in  the 
charge.     (People  v.  Arnett,  129  Cal.  306,  61  Pac.  930.) 

Different  offenses. — Where  the  legislature  has  forbidden  the  sale  of 
opium,  unless  a  record  of  the  sale  is  kept,  and  a  city  ordinance  for- 
bids the  sale  without  a  prescription  of  a  physician,  a  prosecution 
under  each  of  these  provisions  is  no  violation  of  this  provision.  (Ex 
parte  Hong  Shen,  98  Cal.  681,  33  Pac.  799.) 

A  prosecution  for  fraudulently  procuring  a  note  of  one  of  the  joint 
makers  is  not  a  bar  to  a  prosecution  for  fraudulently  procuring  the 
joint  note  of  the  two  makers.  (People  v.  Cummings,  123  Cal.  269,  55 
Pac.  898.) 

An  acquittal  upon  a  charge  of  libel  in  the  publication  of  a  charge 
in  a  newspaper  is  a  bar  to  a  prosecution  for  the  publication  of  an- 
other charge  in  the  same  issue  and  against  the  same  individual, 
although  the  charges  are  not  the  same.  (People  v.  Stephens,  79  Cal. 
428,  4  L.  R.  A.  845,  21  Pac.  856.) 

A  charge  of  altering  the  brands  of  cattle  is  not  included  in  a  charge 
of  grand  larceny  of  the  same  cattle,  in  which  evidence  was  given  of 
the  same  alteration  of  brands.  (People  v.  Kerrick,  144  Cal.  46,  77 
Pac.  711.) 

Lesser  offense. — A  conviction  of  a  lesser  offense  than  that  charged 
is  an  acquittal  of  the  higher.  (People  v.  Apgar,  35  Cal.  389;  People 
v.  Ny  Sam  Chung,  94  Cal.  304,  28  Am.  St.  Rep.  129,  29  Pac.  642;  Peo- 
ple V.  Gordon,  99  Cal.  227,  33  Pac.  901.) 

Where  a  defendant  is  charged  with  assault  with  a  deadly  weapon, 
and  is  convicted  of  battery,  and  the  judgment  is  reversed,  a  plea  of 
once  in  jeopardy  will  not  lie,  as  assault  does  not  include  battery. 
(People  V.  Helbing,  61  Cal.  620.) 

A  defendant  tried  for  murder,  and  convicted  of  murder  in  the  sec- 
ond degree,  who  has  the  judgment  vacated  and  a  new  trial  granted, 
may  be  subsequently  convicted  of  murder  in  the  first  degree.  (Peo- 
ple V.  Keefer,  65  Cal.  232,  3  Pac.  818.) 


Art.  I,  §  13  CONSTITUTION  OF  1879.  152 

A  conviction  of  an  assault,  under  an  information  charging  an  as- 
sault with  intent  to  murder,  is  a  bar  to  a  prosecution  for  mayhem 
committed  during  the  assault.  (People  v.  Defoor,  100  Cal.  150,  34 
rac.  642.) 

A  verdict  of  manslaughter  is  the  equivalent  of  a  verdict  of  not 
guilty  of  murder,  and  the  defendant,  after  such  verdict,  cannot  be 
again  tried  upon  the  charge  of  murder.  (People  v.  Muhlner,  115 
Cal.  303,  47  Pac.  128.) 

A  conviction  for  petit  larceny  committed  in  connection  with  a 
burglary  is  not  a  bar  to  a  prosecution  for  burglary.  (People  v.  Dev- 
lin, 143  Cal.  128,  76  Pac.  900.) 

New  trials  and  appeals. — Where  a  new  trial  is  ordered  for  insuffi- 
ciency of  the  evidence,  a  plea  of  once  in  jeopardy  has  no  merit. 
(People  V.  Hardisson,  61  Cal.  378.) 

Where  a  judgment  of  conviction  is  reversed  because  of  a  defective 
information,  and  the  action  is  dismissed  and  a  new  information  filed 
for  the  same  offense,  the  aefendant  cannot  plead  once  in  jeopardy. 
(People  V.  Schmidt,  64  Cal.  260,  30  Pac.  814;  People  v.  Eppinger, 
109  Cal.  294,  41  Pac.  1037;  People  v.  Clark,  67  Cal.  99,  7  Pac.  178; 
People  V.  Mooney,  132  Cal.  13,  63  Pac.  1070.) 

The  same  is  true  where  the  judgment  is  reversed  because  the  ver- 
dict fails  to  find  the  degree  of  the  crime.  (People  v.  Travers,  73  Cal. 
580,  15  Pac.  293;  People  v.  Lee  Yune  Chong,  94  Cal.  379,  29  Pac.  776.) 
Also  where  the  judgment  is  reversed  for  failure  to  file  the  informa- 
tion within  the  time  prescribed  by  the  statute.  (People  v.  Wickham, 
116  Cal.  384,  48  Pac.  329.) 

Also  where  the  judgment  is  reversed  for  failure  to  find  upon  a  plea 
of  once  in  jeopardy.     (People  v.  Tucker,  117  Cal.  229,  49  Pac.  134.) 

Where  the  defendant  has  not  asked  for  a  new  trial,  the  supreme 
court  in  reversing  the  judgment  may  nevertheless  grant  it.  (People 
V.  Travers,  77  Cal.  176,  19  Pac.  268;  People  v.  Lee  Yune  Chong,  94 
Cal.  379,  29  Pac.  776.) 

New    trial    as    former    jeopardy.     See    8    R.    C.    L.,    §§  152-156, 
pp.  160-164. 

Practice. — The  question  of  jeopardy  can  only  arise  after  an  issue 
has  been  made  of  once  in  jeopardy.  (People  v.  Lee  Yune  Chong,  94 
Cal.  379,  29  Pac.  776.) 

The  defendant  is  entitled  to  a  special  verdict  upon  a  plea  of  once 
in  jeopardy.     (People  v.  Tucker,  115  Cal.  337,  47  Pac.  111.) 

Where  the  jury  on  the  first  trial  found  for  the  people  on  the  plea 
of  once  in  jeopardy,  but  failed  to  agree  as  to  the  plea  of  not  guilty, 
the  former  plea  need  not  be  again  submitted  to  the  jury  on  a  second 
trial.     (People  v.  Smith,  121  Cal.  355,  53  Pac.  802.) 

Former  acquittal  or  conviction  as  defense.     See  note,  11  Am.  St. 

Rep.  228. 
Identity   of   offenses   in   plea   of   former   jeopardy.     See   note,   92 

Am.  St.  Rep.  89. 
Effect  of  granting  new  trial  after  conviction.     See  note,  14  Am. 
Rep.   751. 


i 


153  DECLARATION    OF   RIGHTS.  Art.  I,  §  13 

Granting  new  trial  after  conviction  for  manslaughter  does  not 
permit  subsequent  conviction  for  a  greater  crime.  See  note, 
12  Am.  Rep.  473. 

Granting  of  new  trial,  whether  may  subject  defendant  to  convic- 
tion for  higher  oflfense.     See  note,  4  Am.  St.  Rep.  117. 

Waiver  or  estoppel  to  plead  former  jeopardy.  See  note,  13o  Am. 
St.  Rep.  70. 

Former  jeopardy  in  general.  See  8  E.  C.  L.,  §§  114-156,  pp.  134- 
164. 

Examination  before  magistrate  as  former  jeopardy.  See  note,  18 
Ann.  Cas.  993. 

Former  jeopardy  notwithstanding  order  of  mistrial.  See  notes,  1 
Ann.  Cas.  118;  10  Ann.  Cas.  1086;  Ann.  Cas.  1914B,  774. 

Conviction  for  lesser  offense  on  trial  for  greater  as  bar  to  prose- 
cution for  greater  on  new  trial.  See  notes,  4  Ann.  Cas.  778; 
16  Ann.  Cas.  1206;   Ann.  Cas.  1912C,  668. 

WITNESS  AGAINST  SELF.— A  proceeding  to  remove  a  public  offi- 
cer for  misconduct  in  office,  no  matter  in  what  form  the  statutes  may 
clothe  it,  is  in  its  nature  a  criminal  case.  (Thurston  v.  Clark,  107 
Cal.  285,  40  Fac.  435.) 

Sections  1458  to  1461  of  the  Code  of  Civil  Procedure  are  not  penal 
in  their  nature.  (Levy  v.  Superior  Court,  105  Cal.  600,  29  L.  R.  A. 
811,  38  Pac.  965.) 

Where  the  examination  of  the  defendant  is  confined  entirely  to  the 
instrument  which  he  is  charged  with  forging,  he  cannot  be  cross-exam- 
ined in  reference  to  the  forgery  of  another  instrument.  (People  v. 
Baird,  104  Cal.  462,  38  Pac.  310.) 

Where  a  defendant  testifies  that  he  drew  the  pistol  merely  to  scare 
the  deceased  and  had  had  no  quarrel  with  him  on  that  day,  it  is 
proper  on  cross-examination  to  ask  him  whether  or  not  he  had  a 
quarrel  with  the  deceased  a  few  moments  before  the  shooting,  and 
as  to  what  kind  of  a  pistol  he  had,  and  why  he  cocked  it.  (People 
V.  Brown,  76  Cal.  573,  18  Pac.  678.) 

Where  a  defendant  in  his  cross-examination  voluntarily  makes  a 
statement  concerning  matters  not  embraced  in  his  examination  in 
chief,  he  may  be  cross-examined  for  the  purpose  of  making  such 
statements  more  clear.     (People  v.  Sutton,  73   Cal.  243,  15  Pac.  86.) 

The  fact  that  the  defendant  has  been  compelled  to  testify  concern- 
ing the  offense  is  merely  a  defense  to  the  indictment,  and  does  not 
affect  the  jurisdiction  of  the  court.  (Rebstock  v.  Superior  Court,  146 
Cal.  308,  80  Pac.  65.) 

It  is  sufficient,  to  bring  a  person  within  the  immunity  of  this  pro- 
vision, that  there  is  a  law  creating  the  offense  under  which  the  wit- 
ness may  be  prosecuted,  and  which  does  not  secure  him  against  use. 
in  a  criminal  prosecution,  of  the  evidence  that  he  may  give;  and  in 
such  case  he  cannot  be  compelled  to  answer  in  any  collateral  proceed- 
ing as  to  acts  constituting  such  offense.  (Ex  parte  Clarke,  103  Cal. 
352,  37  Pac.  230.) 

Where  the  statute  gives  the  witness  complete  immunity  from  prose- 
cution for  the  offense  with  reference  to  which  his  testimony  is  given. 


Art.  I,  §  13  CONSTITUTION  OF  1879.  154 

he  cannot  refuse  to  answer.     (Ex  parte  Cohen,  104  Cal.  524,  43  Am. 
St.  Rep.  127,  26  L.  R.  A.  423,  38  Pac.  364.) 

A  law  can  absolutely  secure  a  party  against  use  in  a  criminal  prose- 
cution of  the  evidence  he  may  give,  only  by  a  provision  that,  if  he 
submits  to  the  examination  and  answers  the  questions,  he  shall  be 
exempt  from  any  criminal  prosecution  for  the  offense  to  which  the 
inquiry  relates.     (Ex  parte  Clarke,  103  Cal.  352,  37  Pac.  230.) 

The  mere  fact  that  an  answer  might  disgrace  the  witness  is  not 
ground  for  refusal  to  answer;  and  where  an  act  provides  that  the  tes- 
timony shall  not  be  used  against  him  in  any  criminal  prosecution,  he 
cannot  refuse  to  answer  under  this  provision.  (Ex  parte  Rowe,  7 
Cal.  184.) 

It  is  for  the  court  and  not  for  the  witness  to  determine  whether  or 
not  the  answer  will  incriminate  the  witness.  (In  re  Rogers,  129  Cal. 
468,  62  Pac.  47.) 

A  defendant  in  a  criminal  prosecution,  who  has  become  a  witness 
in  his  own  behalf,  cannot  be  cross-examined  as  to  any  facts  or  mat- 
ters not  testified  to  by  him  on  his  examination  in  chief.  (People  v. 
O'Brien,  66  Cal.  602,  6  Pac.  695.) 

When  a  defendant  offers  himself  as  a  witness  he  is  subject  to  the 
same  rules  of  cross-examination  as  any  other  witness.  (People  v. 
Maughs,  8  Cal.  App.  107,  96  Pac.  407.) 

Where  a  person,  suspected  of  being  concerned  in  a  crime,  is  taken 
before  the  grand  jury,  before  any  formal  charge  is  made  against  him, 
and  is  sworn  and  examined  concerning  his  actions  before  and  at  the 
time  of  the  crime,  without  being  informed  of  his  constitutional  right 
to  decline  to  be  a  witness  against  himself,  nor  warned  that  his  state* 
ments  might  be  used  against  him,  the  testimony  so  given  by  him 
cannot  be  used  against  him.  (People  v.  O'Bryan,  165  Cal.  55,  130 
Pac.  1042.) 

A  person  is  not  compelled  to  be  a  witness  against  himself  in  viola- 
tion of  this  section,  when  doctors  are  allowed  to  give  their  opinions 
of  his  sanity  in  a  criminal  trial,  which  opinions  are  based  upon  their 
examinations,  to  which  he  voluntarily  submitted.  (People  v.  Bundy, 
168  Cal.  777,  145  Pac.  537.) 

Section  367c  of  the  Penal  Code,  which  requires  the  driver  of  a 
motor  vehicle  who  has  injured  a  person  or  vehicle  to  give  to  the  in- 
jured person  the  number  of  his  vehicle,  his  name  and  address,  and 
the  name  of  the  owner  of  such  vehicle,  does  not  offend  this  provision. 
(People  V.  Diller,  24  Cal.  App.  799,  142  Pac.  797.) 

Privilege  of  witness  as  to  incriminating  testimony.     See  notes,  21 

Am.  Dec.  55;  75  Am.  St.  Rep.  318. 
Waiver  of  privilege  of  witness  by  voluntarily  testifying  in  own 
behalf.     See  notes,  19  Am.  Rep.  348;  2  Ann.  Cas.  247;   11  Ann. 
Cas.  822. 
Compelling  accused  to  perform  acts,   exhibit  himself,  or  to  sub- 
mit to  physical  examination.     See  note,  94  Am.  St.  Rep.  336. 
Witness  or  court  as  proper  one  to  decide  whether  answer  to  ques- 
tion  asked   will   tend   to   degrade   or   incriminate   witness.     See 
notes,  5   Ann.   Cas.  41;    11  Ann.   Cas.   1079;    12   Ann.   Cas.   661. 
Immunity    from    self-incrimination.     See    8    R.    C.    L.,    §§  32-35, 
pp.  77-81. 


155  DECLARATION    OF   RIGHTS.  Art.  I,  §  13 

DUE  PROCESS  OF  LAW — Property. — The  right  to  practice  law  is 
not  "property"  within  the  meaning  of  this  section.  (Cohen  v.  Wright, 
22  Cal.  293.) 

The  right  to  a  salary  attached  to  a  public  office  is  not  property. 
(Pennie  v.  Eeis,  80  Cal.  266,  22  Pac.  176;  Clarke  v.  Keis,  87  Cal.  543, 
25  Pac.  759.) 

Title  by  prescription  is  property  which  is  protected  by  this  provi- 
sion.    (Sharp  V.  Blankenship,  59  Cal.  288.) 

A  vested  right  in  a  pension  fund  is  property  within  the  meaning  of 
this  provision.  (Kavanagh  v.  Board  of  Police  Pension  Fund  Commrs., 
134  Cal.  50,  66  Pac.  36.) 

The  question  whether  an  act  deprives  persons  of  property  without 
due  process  of  law  is  a  federal  question,  upon  which  the  decisions  of 
the  United  States  are  the  controlling  authority.  (Brookes  v.  City  of 
Oakland,  160  Cal.  423,  117  Pac.  433.) 

What  is  "due  process." — "Due  process  of  law"  means  such  an  exer- 
tion of  the  powers  of  the  government  as  the  settled  maxims  of  law 
permit  and  sanction,  and  under  such  safeguards  for  the  protection  of 
individual  rights  as  those  maxims  prescribe  for  the  class  of  cases  to 
which  the  one  in  question  belongs.  (Ex  parte  Ah  Fook,  49  Cal.  402; 
Wulzen  V.  Board  of  Supervisors,  101  Cal.  15,  40  Am.  St.  Eep.  17,  35 
Pac.  353.) 

The  words  "due  process  of  law"  were  intended  to  convey  the  same 
meaning  as  the  words  "the  law  of  the  land"  in  Magna  Charta,  and 
mean  public  laws  binding  all  the  members  of  the  community  under 
similar  circumstances,  and  not  partial  or  private  laws  affecting  the 
rights  of  individuals.     (Kalloch  v.  Superior  Court,  56  Cal.  229.) 

Due  process  of  law  requires  a  trial  governed  by  the  established 
rules  of  evidence,  and  a  procedure  suitable  and  proper  to  the  nature 
of  the  case,  and  sanctioned  by  the  established  usage  and  customs  of 
the  courts.  (San  Jose  Eanch  Co.  v.  San  Jose  Land  etc.  Co.,  126  Cal. 
322,  58  Pac.  824.) 

Police  power. — In  the  exercise  of  the  police  power  certain  kinds  of 
property,  when  held  or  used  so  as  to  be  injurious  to  the  general  pub- 
lic, may  be  seized  and  destroyed.  (Collins  v.  Lean,  68  Cal.  284,  9 
Pac.  173.) 

An  act  defining  pure  wine,  prohibiting  the  use  of  deleterious  sub- 
stitutes, and  forbidding  the  sale  of  impure  wine,  does  not  deprive  one 
of  property  without  due  process  of  law.  (Ex  parte  Kohler,  74  Cal. 
38,  15  Pac.  436.) 

Where  the  exercise  of  the  police  power  is  permissible,  the  provision 
of  the  Constitution  declaring  that  private  property  shall  not  be  taken 
without  due  process  of  law  is  inapplicable.  (Ex  parte  Elam,  6  Cal. 
App.  233,  91  Pac.  811.) 

An  ordinance  prohibiting  the  sale  of  liquors  is  not  unconstitutional 
because  it  deprives  one  of  the  right  to  dispose  of  large  quantities  of 
liquor  which  he  had  on  hand  at  the  time  the  ordinance  was  passed. 
(Ex  parte  Young,  154  Cal.  317,  22  L.  R.  A.  (N.  S.)  330,  97  Pac.  822.) 

Where  an  ordinance,  fixing  the  limits  within  which  a  disagreeable 
business  may  be  exercised,  has  in  fact  some  relation  to  public  health 
and  is  appropriate  and  adapted  to  that  end,  it  cannot  be  urged  that 


Art.  I,  §  13  CONSTITUTION  OF  18  <  9.  156 

the  ordinance  deprives  the  owner  of  his  property  without  due  process 
of  law,  (Ex  parte  Lacey,  108  Cal.  326,  49  Am.  St.  Rep.  93,  38  L.  R.  A. 
640,  41  Pac.  411.) 

Particular  statutes. — The  provision  of  the  Constitution  allowing 
prosecutions  by  information  affords  due  process  of  law.  (Kalloch  v. 
Superior  Court,  56  Cal.  229.) 

The  provision  of  section  971  of  the  Penal  Code  as  to  charging  an 
accessory  before  the  fact  as  a  principal  does  not  deprive  him  of  life, 
liberty  or  property  without  due  process  of  law.  (People  v,  Nolan, 
144  Cal.  75,  77  Pac.  774.) 

The  expulsion  of  a  member  of  the  legislature  without  a  hearing 
does  not  deprive  him  of  property  without  due  process  of  law.  (French 
V.  Senate,  146  Cal.  604,  2  Ann.  Cas.  756,  69  L.  R.  A.  556,  80  Pac.  1031.) 

The  legislature  has  power  to  provide  that  a  deed  in  a  street  assess- 
ment matter  shall  be  conclusive  evidence  of  tLe  regularity  of  all  re- 
quired steps  other  than  those  necessary  to  constitute  due  process  of 
law  or  to  comply  with  the  Constitution.  (Chase  v.  Trout,  146  Cal. 
350,  80  Pac.  81.) 

The  statute  prescribing  an  increased  punishment  for  a  second  of- 
fense does  not  deprive  a  defendant  of  liberty  without  due  process  of 
law.     (People  v.  Coleman,  145  Cal.  609,  79  Pac.  283.) 

A  law  imposing  the  death  penalty  upon  a  person  undergoing  a  life 
sentence,  who,  with  malice  aforethought,  commits  an  assault  upon 
another  with  a  deadly  weapon,  or  by  any  means  likely  to  produce 
bodily  injury,  is  valid.     (In  re  Finley,  1  Cal.  App.  198,  81  Pac.  1041.) 

An  act  making  the  issuance  of  bonds  conclusive  evidence  of  the 
validity  of  the  lien  is  void;  but  an  act  making  the  issuance  conclusive 
evidence  of  the  regularity  of  the  proceedings  not  essential  to  the 
jurisdiction  of  the  officers  to  create  the  lien  is  valid.  (Ramish  v. 
Hartwell,  126  Cal.  443,  58  Pac.  920.) 

This  provision  does  not  prohibit  a  summary  proceeding  by  the  state 
to  collect  taxes,  without  the  intervention  of  a  court.  (High  v.  Shoe- 
maker, 22  Cal.  363.) 

The  act  of  1875,  providing  for  a  judicial  proceeding  to  authorize 
the  sale  of  the  homestead  upon  the  insanity  of  either  spouse,  by  the 
sane  spouse  alone,  is  valid,  in  so  far  as  it  relates  to  a  homestead 
upon  the  community  property  acquired  subsequent  to  the  passage  of 
the  act.     (Rider  v.  Regan,  114  Cal.  667,  46  Pac.  820.) 

A  law  authorizing  the  court  to  strike  out  the  pleading  of  a  defend- 
ant for  failure  to  sign  a  deposition  or  as  a  punishment  for  a  con- 
tempt of  court  is  invalid.  (Foley  v.  Foley,  120  Cal.  33,  65  Am.  St. 
Rep.  147,  52  Pac.  122.) 

To  enter  judgment  against  a  defendant  for  failure  to  deposit  his 
share  of  the  per  diem  of  the  reporter  is  taking  property  without  due 
process  of  law.  (Meacham  v.  Bear  Valley  Irr.  Co.,  145  Cal.  606,  68 
L.  R.  A.  600,  79  Pac.  281.) 

A  statute  providing  that  no  case  shall  be  reversed  for  error,  unless 
it  appears  that  a  different  result  would  have  been  probable  if  the 
error  liad  not  occurred,  is  void  as  depriving  parties  of  due  process  of 
law.  (San  Jose  Ranch  Co.  v.  San  Jose  etc.  Land  Co.,  126  Cal.  322, 
58  Pac.  824.) 


157  DECLARATION    OF   RIGHTS.  Art.  I,  §  13 

An  aat  divesting  the  title  of  the  purchaser  of  property  from  a  mort- 
gagor by  a  foreclosure  suit  in  which  the  mortgagor  alone  is  defend- 
ant is  void.     (Skinner  v.  Buck,  29  Cal.  253.) 

An  act  extending  the  corporate  limits  of  a  town  so  as  to  include 
lands  used  solely  for  agricultural  purposes  was  upheld  in  Santa  Rosa 
V.  Coulter,  58  Cal.  537. 

The  act  of  1907,  page  122,  prohibiting  waste  from  artesian  wells 
does  not  unconstitutionally  interfere  with  private  property.  (Ex 
parte  Elam,  6  Cal.  App.  233,  91  Pac.  811.) 

The  mechanic's  lien  law  is  not  unconstitutional  because  it  takes 
property  without  due  process  of  law.  (Stimson  Mill  Co.  v.  Nolan,  5 
Cal.  App.  754,  91  Pac.  262.) 

The  amendments  to  the  Code  of  Civil  Procedure  providing  for  a 
new  and  alternative  method  of  appeal  do  not  violate  the  "due  process 
of  law"  clauses  of  the  state  and  federal  Constitutions  in  failing  to 
require  service  of  notices  of  appeal  upon  respondents.  (Estate  of 
McPhee,  154  Cal.  385,  97  Pac.  878.) 

The  amendment  to  the  Code  of  Civil  Procedure  relative  to  the 
method  of  preparing  the  record  to  be  used  on  appeal  is  not  unco'usti- 
tutional  in  not  providing  for  service  of  the  notice  filed  with  the  clerk 
that  the  appellant  intends  to  appeal  and  requiring  that  a  transcript 
be  made  up.     (Estate  of  McPhee,  154  Cal.  385,  97  Pac.  878.) 

The  legislature  has  power  to  permit  execution  to  issue  on  a  judg- 
ment after  the  expiration  of  the  five  years'  limitation  in  effect  when 
the  judgment  was  rendered,  provided  the  judgment  had  not  become 
barred  at  the  time  of  the  amendment.  (Weldon  v.  Eogers,  151  Cal. 
432,  90  Pac.  1062.) 

The  legislature  may  extend  the  time  within  which  an  action  may 
be  brought  at  any  time  before  the  action  is  barred.  (Weldon  v,  Rog- 
ers, 151  Cal.  432,  90  Pac.  1062.) 

The  legislature  has  power  to  make  a  tax  deed  conclusive  evidence 
that  after  a  sale  to  the  state  the  tax  collector  stamped  all  subsequent 
bills  "sold  for  taxes"  and  the  date  of  the  sale.  (Bank  of  Lemoore 
v.  Fulgbam,  151  Cal.  234,  90  Pac.  936.) 

It  is  not  within  the  power  of  the  legislature  to  take  away  the  right 
of  redemption  from  a  tax  sale  which  existed  at  the  time  of  the  sale. 
(Johnson  v.  Taylor,  150  Cal.  201,  119  Am.  St.  Rep.  181,  10  L.  R.  A. 
(N.  S.)   818,  88  Pac.  903.) 

Section  526  of  the  Code  of  Civil  Procedure  does  not  prevent  the 
issuance  of  an  injunction  to  restrain  the  board  of  public  works  of  a 
city  from  enforcing  assessments  levied  for  the  condemnation  of  land 
for  street  purposes,  where  plaintiffs  claimed  they  were  being  deprived 
of  their  property  without  due  process  of  law.  (Pierce  v.  City  of  Los 
Angeles,  159  Cal.  516,  114  Pac.  818.) 

Section  3897  of  the  Political  Code,  concerning  the  sale  of  property 
purchased  by  the  state,  does  not  deprive  of  property  without  due 
process  of  law  (Merchants'  Trust  Co.  v.  Wright,  161  Cal.  149,  118 
Pac.  517);  an  act  providing  for  the  discontinuance  of  a  public  lane 
leading  from  one  public  road  to  another  by  the  board  of  supervisors 
without  a  hearing  does  not  deprive  the  abutting  owner  of  his  prop- 
erty without  due  process  of  law.  (Swift  v.  Board  of  Supervisors,  16 
Cal".  App.  72,  116  Pac.  317.) 


Art.  I,  §  13  CONSTITUTION  OF  1879.  158 

The  provision  of  the  act  of  1889  providing  for  the  laying  out,  open- 
ing, extending,  widening,  straightening  or  closing  up  city  streets, 
directing  the  city  council  to  determinr-  objections  made  to  the  report 
of  the  commissioners  and  to  the  assessments,  and  that  a  time  must 
be  set  for  the  hearing  thereof,  of  which  reasonable  notice  must  be 
given,  constitutes  due  process  of  law.  (United  Eeal  Estate  etc.  Co. 
V.  Barnes,  159  Cal.  242,  113   Pac.  167.) 

Where  property  is  sold  for  taxes  to  the  state  and  the  owner  does 
not  redeem,  there  is  no  constitutional  objection  to  the  state  acquiring 
the  title  free  from  all  equities,  which  it  can  sell  and  convey  to  the 
highest  bidder  for  cash  and  which  will  be  good  as  against  the  former 
owner.     (Chapman  v.  Zobelein,  19  Cal.  App.  132,  124  Pac.  1021.) 

The  State  Banking  Act  of  1909,  in  authorizing  the  summary  seiz- 
ure by  the  superintendent  of  banks  of  the  property  and  business 
of  a  bank  whenever  he  has  reason  to  conclude  that  it  is  in  an  un- 
sound condition,  without  action  brought  or  judicial  warrant  for  the 
taking,  does  not  violate  the  due  process  of  law  clause  of  the  Consti- 
tution. (State  Savings  etc.  Bank  v.  Anderson,  165  Cal.  437,  132  Pac. 
755.) 

Notice. — A  judgment  obtained  without  service  of  summons  on,  or 
voluntary  appearance  by,  the  defendant  does  not  constitute  due 
process  of  law.  (Baker  v.  O'Riordan,  65  Cal.  368,  4  Pac.  232;  Belcher 
V.  Chambers,  53  Cal.  635;  De  La  Montanya  v.  De  La  Montanya,  112 
Cal.  101,  53  Am.  St.  Rep.  165,  32  L.  R.  A.  82,  44  Pac.  345.) 

A  law  authorizing  the  commitment  of  a  person  to  an  insane  asylum 
without  notice  is  void.  (Matter  of  Lambert,  134  Cal.  626,  86  Am.  St. 
Rep.  296,  55  L.  R.  A.  856,  66  Pac.  851.) 

The  shortness  of  the  period  of  constructive  notice  to  nonresident 
heirs  of  the  probate  of  a  will  does  not  deprive  them  of  due  process  of 
law,  siuce  they  are  allowed  to  contest  the  will  within  a  year  after 
probate.     (Estate  of  Davis,  136  Cal.  590,  69  Pac.  412.) 

An  ex  parte  order  for  alimony  is  void.  (Baker  v.  Baker,  136  Cal. 
302,  68  Pac.  971.) 

The  fact  that  the  street  bond  act  does  not  in  terms  give  a  lien- 
holder  an  opportunity  to  object  does  not  render  it  unconstitutional. 
(German  Sav.  etc.  Soc.  v.  Ramish,  138  Cal.  120,  69  Pac.  89,  70  Pac. 
1067.) 

An  act  authorizing  a  personal  judgment  against  a  defendant  con- 
cealing himself  within  the  state,  for  whom  the  court  has  appointed 
an  attorney  with  privilege  to  the  defendant  to  come  in  within  six 
months,  is  valid.     (Ware  v.  Robinson,  9  Cal.  107.) 

Sections  1206  and  1207  of  the  Penal  Code  must  be  construed  as  re- 
quiring that  both  debtor  and  creditor  are  to  have  notice  of  claims 
for  wages,  otherwise  they  would  deprive  the  debtor  of  his  property 
without  due  process  of  law.  (Taylor  v.  Hill,  115  Cal.  143,  44  Pac. 
336,  46  Pac.  922.) 

Whether  a  notice  of  not  more  than  ten  days  is  valid,  query?  (Boor- 
man  V.  Santa  Barbara,  65  Cal.  313,  4  Pac.  31.) 

A  general  notice  of  an  intended  improvement,  before  it  hag  been 
determined  either  finally  or  conditionally  what  land  will  be  affected 
does  not  constitute  due  process  of  law.  (Boorman  v.  Santa  Barbara, 
65  Cal.  313,  4  Pac.  31.) 


159  DECLARATION   OF   RIGHTS.  Art.  I,  §  13 

An  act  authorizing  an  assessment  for  street  improvements  without 
notice  to  the  parties  to  be  assessed  is  void.  (Boorman  v.  Santa  Bar- 
bara, 65  Cal.  313,  4  Pac.  31.) 

Notice  by  posting  constitutes  due  process  of  law.  (Davies  v.  Los 
Angeles,  86  Cal.  37,  24  Pac.  771.) 

Section  720  of  the  Code  of  Civil  Procedure,  allowing  the  judgment 
creditor  to  institute  an  action  against  an  alleged  debtor  of  the  judg- 
ment debtor,  is  not  unconstitutional  on  the  gro-und  that  no  notice  is 
given  to  the  judgment  debtor.  (High  v.  Bank  of  Commerce,  95  Cal. 
386,  29  Am.  St.  Eep.  121,  30  Pac.  556.) 

In  matters  of  taxation  and  assessment,  the  state  is  not  bound  to 
accord  personal  service  of  process  upon  the  citizen.  (Wulzen  v. 
Board  of  Supervisors,  101  Cal.  15,  40  Am.  St.  Eep.  17,  35  Pac.  353.) 

An  assessment  without  giving  an  opportunity  to  the  taxpayer  to 
show  that  the  assessment  is  not  proportionate  to  the  benefits  is  un- 
constitutional. (Lower  Kings  River  Rec.  Dist.  No.  531  v.  Phillips, 
108  Cal.  306,  39  Pac.  630,  41  Pac.  335.) 

In  a  proceeding  for  the  sale  of  the  homestead  of  an  insane  person, 
publication  for  three  weeks  in  a  newspaper,  and  personal  service  upon 
the  nearest  male  relative  of  the  insane  spouse  to  be  found  in  the 
%tate,  or,  if  none,  then  upon  the  public  administrator,  whose  duty  it 
is  to  appear  for  such  insane  spouse,-  constitutes  due  process  of  law. 
(Rider  v.  Regan,  114  Cal.  667,  46  Pac.  820.) 

Heirs  and  devisees  are  not  deprived  of  their  property  without  due 
process  of  law  by  an  order  setting  aside  a  homestead  in  probate  with- 
out notice  to  them.     (Otto  v.  Long,  144  Cal.  144,  77  Pac.  885.) 

A  statute  allowing  an  execution  to  issue  against  the  "joint  prop- 
erty" of  persons  sued,  when  only  one  of  the  defendants  has  been 
served,  is  unconstitutional.     (Tay  v.  Hawley,  39  Cal.   93.) 

An  act  allowing  a  peace  officer  to  seize  all  nets,  etc.,  used  in  catch- 
ing fish  in  violation  of  the  game  laws,  and  to  destroy  them  without 
notice,  or  to  sell  them  upon  notice  posted  anywhere  in  the  county  for 
five  days,  is  in  violation  of  this  provision,  (Hey  Sing  leck  v.  Ander- 
son, 57  Cal.  251,  40  Am.  Rep.  115.) 

To  take  property  from  the  possession  of  a  person  without  a  hearing, 
and  compel  him  to  prove  title  to  regain  it,  is  taking  property  with- 
out due  process  of  law.  (Havemej'er  v,  Superior  Court,  84  Cal.  327, 
18  Am.  St.  Rep.  192,  10  L.  R.  A.  627,  24  Pac.  121.) 

A  forfeiture  of  the  charter  and  property  of  a  subordinate  grove  by 
the  grand  grove,  without  sufficient  charges  to  show  jurisdiction  over 
the  subject  matter,  and  without  sufficient  notice,  is  in  violation  of 
this  provision.  (Grand  Grove  etc.  v.  Garibaldi  Grove,  130  Cal.  116, 
80  Am.  St.  Rep.  80,  62  Pac.  486.) 

An  order  of  the  probate  court  made  without  notice,  compelling  an 
attorney  of  an  executrix  to  repay  a  fee  paid  to  him  by  her,  is  in  vio- 
lation of  this  provision,  (Tomsky  v.  Superior  Court,  131  Cal.  620, 
63  Pac.  1020.) 

Due  process  of  law  does  not  ••equire  that  the  defendant  should  have 
notice  of  a  motion  for  the  issuance  of  execution.  (Harrier  v,  Bass- 
ford,  145  Cal.  529,  78  Pac.  1038.) 

The  inheritance  tax  act  does  not  deprive  the  heir  of  his  property 
without  due  process  of  law,  since  he  is  given  au   opportunity  to  be 


Art.  T,  §  13  CONSTITUTION  OF  1879.  160 

heard.     (Trippet  v.  State,  149  Cal.  521,  8  L.  E.  A.  (N.  S.)   1210,  86 
Pac,  1084.) 

An  act  providing  that  when  a  foreign  corporation  doing  business  in 
this  state  fails  to  appoint  an  agent  upon  whom  process  may  be  served 
process  may  be  served  on  the  secretary  of  state  is  valid.  (Olender  v. 
Crystalline  Min.  Co.,  149  Cal.  482,  86  Pac.  1082.) 

A  statute  allowing  the  filing  of  a  memorandum  of  costs  on  appeal 
without  opportunity  to  the  adverse  party  to  have  the  same  taxed 
would  be  unconstitutional.  (Bell  v.  Superior  Court,  150  Cal.  31,  Si 
Pac.  1031.) 

The  act  for  the  establishment  of  titles  in  San  Francisco  in  cases 
where  the  records  were  destroyed  by  fire  does  not  deprive  anyone  of 
property  without  due  process  of  law.  (Title  etc.  Eestoration  Co.  v, 
Kerrigan,  150  Cal.  289,  119  Am.  St.  Rep.  199,  8  L.  E.  A.  (N.  S.)  682, 
88  Pac.  356.) 

The  legislature  may  prescribe  moral  and  unprecedented  methods  of 
procedure,  provided  they  afford  the  parties  affected  substantial  secu- 
rities against  arbitrary  and  unjust  spoliation.  (Title  etc.  Eestora- 
tion Co.  V.  Kerrigan,  150  Cal.  289,  119  Am.  St.  Eep.  199,  8  L,  E,  A. 
(N,  S.)  682,  88  Pac.  356.) 

The  provisions  of  the  Code  of  Civil  Procedure  providing  for  the 
dissolution  of  corporations  without  personal  notice  to  creditors  is  not 
invalid.     (Crossman  v.  Vivienda  Water  Co.,  150  Cal.  575,  89  Pac.  335.) 

The  "Torrens  Law"  does  not  deprive  unknown  owners  of  property 
without  due  process  of  law.  (Eobinson  v.  Kerrigan,  151  Cal.  40,  121 
Am.  St.  Eep.  90,  12  Ann.  Cas.  829,  90  Pac.  129.) 

The  provisions  for  the  probate  of  wills  is  not  unconstitutional  be- 
cause the  notice  of  ten  days  is  insufiicient  to  reach  nonresident  heirs, 
since  they  are  allowed  one  year  after  probate  within  which  to  con- 
test the  probate.  (Tracy  v.  Muir,  151  Cal.  363,  121  Am.  St.  Eep.  117, 
90  Pac.  832.) 

The  probate  act  does  not  deprive  the  nonresident  of  his  property 
without  due  process  of  law  because  it  provides  a  different  notice  to 
residents  than  to  nonresidents.  (Tracy  v.  Muir,  151  Cal.  363,  121 
Am.  St.  Eep.  117,  90  Pac.  832.) 

The  legislature  is,  primarily,  the  judge  of  the  necessity  which  will 
warrant  a  substituted  instead  of  a  personal  service  of  process.  (Hoff- 
man V.  Superior  Court,  151  Cal.  386,  90  Pac.  939.) 

The  "McEuerney  Act,"  for  the  establishment  of  titles  where  the 
records  have  been  destroyed,  is  not  unconstitutional  because  it  does 
not  require  the  plaintiff  to  show  the  efforts  made  by  him  to  discover 
possible  claimants  to  the  property.  (Hoffman  v.  Superior  Court,  151 
Cal.  386,  90  Pac.  939.) 

Section  1582  of  the  Code  of  Civil  Procedure,  authorizing  an  action 
to  foreclose  a  mortgage  against  the  estate  of  a  deceased  person  to  be 
brought  against  the  personal  representative  alone,  is  not  unconstitu- 
tional in  depriving  the  heirs  of  property  without  due  process  of  law, 
(McCaughey  v.  Lyall,  152  Cal    615,  93  Pac.  681.) 

The  fact  that,  under  section  2  of  the  act  of  March  31,  1897,  as 
amended  in  1911,  providing  for  the  organization  and  government  of 
irrigation  districts  and  for  the  acquisition  or  construction  thereby  of 
works  for  irrigation,  and  providing  for  the  distribution  of  water  for 


161  DECLARATION    OF    RIGHTS.  Art.  I,  §  13 

irrigation,  it  is  unnecessary  to  the  jurisdiction  of  the  board  of  super- 
visors that  the  notice  of  the  time  of  presentation  of  the  petition  for 
the  organization  of  the  proposed  district  should  be  signed  by  all  the 
petitioners  therefor  and  that  some  might  sign  in  behalf  of  all,  does 
not  make  the  act  unconstitutional  as  not  constituting  due  process  of 
law.     (Imperial  Water  Co.  v.  Supervisors,  162  Cal.  14,  120  Pac.  780.) 

In  any  action  against  known  defendants,  personal  service  of  sum- 
mons is  essential  whenever  it  can  be  had,  and  publication  of  same  as 
against  nonresidents  or  absentees  must  not  be  less  than  two  months. 
(King  v.  Pauly,  159  Cal.  549,  115  Pac.  210.) 

The  act  of  February  13,  1911,  providing  that  the  city  council  of 
any  city  may  create  sewer  districts  within  it  and  fix  their  boundaries, 
is  unconstitutional,  because  it  contains  no  provision  for  any  notice 
or  hearing  upon  the  question  of  the  limits  of  the  districts,  and  be- 
cause no  opportunity  is  afforded  a  property  owner  to  be  heard  upon 
the  question  whether  the  proposed  sewer  will  benefit  his  property. 
(Brookes  v.  City  of  Oakland,  160  Cal.  423,  117  Pac.  433.) 

Liens. — The  mechanics'  lien  law  of  1868  is  not  unconstitutional  on 
the  ground  that  it  attempts  to  appoint  agents  for  private  persons;  nor 
that  it  confiscates  property;  nor  as  to  the  notice  required  of  owners 
as  to  responsibility  for  improvements;  nor  that  it  attempts  to  take 
away  vested  rights,  or  to  clothe  private  persons  with  power  to  divest 
citizens  of  their  property.     (Hicks  v.  Murray,  43  Cal.  515.) 

Giving  a  laborer  a  lien  upon  a  threshing  machine  in  the  lawful  pos- 
session of  a  person  holding  under  the  owner  does  not  deprive  the 
latter  of  property  without  due  process  of  law.  (Lambert  v.  Davis, 
116  Cal.  292,  48  Pac.  123.) 

An  act  authorizing  the  creation  of  a  lien  upon  land  by  virtue  of 
a  contract  for  the  improvement  of  the  street  adjacent  thereto,  en- 
tered into  with  one  who  is  only  the  reputed  owner  of  the  land,  is 
void.  (Santa  Cruz  Rock  etc.  Co.  v.  Lyons,  117  Cal.  212,  59  Am.  St. 
Eep.  174,  48  Pac.  1097.) 

Curative  Acts. — The  legislature  has  power  to  pass  curative  acts  by 
which  the  various  acts  and  proceedings  of  the  officers  and  boards 
charged  with  the  levying  and  assessing  of  taxes  are  rendered  valid, 
notwithstanding  that  errors  and  irregularities  have  intervened.  But 
where  the  officer  or  tribunal  has  no  jurisdiction,  the  act  is  void,  and 
cannot  be  cured.     (People  v.  Goldtree,  44  Cal.  323.) 

An  act  to  validate  a  judgment  of  a  court  void  for  want  of  juris- 
diction is  void.     (Pryor  v.  Downey,  50  Cal.  388,  19  Am.  Rep.  656.) 

An  act  attempting  to  validate  a  void  assessment  is  in  violation  of 
this  provision.  (Brady  v.  King,  53  Cal.  44;  People  v.  Lynch,  51  Cal. 
15,  21  Am.  Rep.  677;  People  v.  Goldtree,  44  Cal.  323;  Schumacker  v. 
Toberman,  56  Cal.  508;  Taylor  v.  Palmer,  31  Cal.  240;  People  v.  Mc- 
Cune,  57  Cal.  153.) 

An  act  attempting  to  legalize  a  sale  of  piopcrty  for  a  void  tax  is 
unconstitutional.  (Harper  v.  Eowe,  53  Cal.  233;  Wills  v.  Austin,  53 
Cal.  152;  Houghton  v.  Austin,  47  Cal.  646.) 

An  act  curing  tax  deeds  not  containing  a  recital  of  the  time  allowed 
for  redemption  is  valid.     (Baird  v.  Monroe,  150  Cal.  560,  89  Pac.  352.) 

The   legislature   may   validate   past   transactions   wherein   no   vested 
rights  arc  affected.     (Redlands  v.  Brook,  151  Cal.  474,  91  Pac.  150.) 
Coustitutiou — 11 


Art.  I,  §  13  CONSTITUTION  OF  1879.  162 

Assessments. — The  so-called  "front-foot"  method  of  assessment  for 
street  improvements  has  been  many  times  upheld  in  this  state.  (Had- 
ley  V.  Dague,  130  Cal.  207,  62  Pac  500;  Cohen  v.  Alameda,  124  Cal. 
504,  57  Pac.  377;  Chambers  v.  Satterlee,  40  Cal.  497;  Emery  v.  San 
Francisco  Gas  Co.,  28  Cal.  345;  Emery  v.  Bradford,  29  Cal.  75;  Taylor 
V.  Palmer,  31  Cal.  240;  Whiting  v.  Quackenbush,  54  Cal.  306;  Whiting 
V.  Townsend,  57  Cal.  515;  Lent  v.  Tillson,  72  Cal.  404;  14  Pac.  71; 
Jennings  v.  Le  Breton,  80  Cal.  8,  21  Pac.  1127;  San  Francisco  Pav. 
Co.  V.  Bates,  134  Cal.  39,  66  Pac.  2;  Banaz  v.  Smith,  133  Cal.  102,  65 
Pac.  309;  Chapman  v.  Ames,  135  Cal.  246,  67  Pac.  1125;  Belser  v.  All- 
man,  134  Cal.  399,  66  Pac.  492;  Eeid  v.  Clay,  134  Cal.  207,  66  Pac.  262; 
Alameda  v.  Cohen,  133  Cal.  5,  65  Pac.  127;  German  Sav.  etc.  Soc.  v.  Ra- 
mish,  138  Cal.  120,  69  Pac.  89,  70  Pac.  1067.) 

Considerable  doubt  was  cast  upon  the  correctness  of  these  decisions 
by  the  decision  of  the  United  States  supreme  court  in  Norwood  v. 
Baker,  172  U.  S.  269,  43  L.  Ed.  443,  19  Sup.  Ct.  Rep.  187;  but  the  doc- 
trine of  these  cases  has  been  since  sustained  by  the  decision  of  that 
court  in  Tonawanda  v.  Lyon,  181  U.  S.  389,  45  L.  Ed.  908,  21  Sup.  Ct. 
Rep.  609. 

An  act  authorizing  the  street  superintendent  to  assess  benefits,  with- 
out prescribing  the  precise  mode  of  assessment,  is  valid.  (Harney  v. 
Benson,  113  Cal.  314,  45  Pac.  687;  Greenwood  v.  Morrison,  128  Cal. 
350,  60  Pac.  971.) 

An  assessment  is  not  invalid  because  the  owner  of  the  land  is  not 
given  an  opportunity  to  be  heard  before  the  assessment  is  made,  if  he 
is  given  that  opportunity  in  an  action  to  enforce  the  assessment. 
(Reclamation  Dist.  No.  108  v.  Evans,  61  Cal.  104.) 

An  act  permitting  the  owners  of  one-half  of  the  land  of  a  district 
to  form  an  assessment  district,  without  making  any  provision  for  a 
determination  as  to  whether  the  other  owners  will  be  benefited  by  the 
improvement,  is  unconstitutional.  (Moulton  v.  Parks,  64  Cal.  166,  30 
Pac.  613;  Brandenstein  v.  Hoke,  101  Cal.  131,  35  Pac.  562;  People  v. 
Reclamation  Dist.  No.  551,  117  Cal.  114,  48  Pac.   1016.) 

The  mode  of  assessment  is  a  matter  for  the  legislature,  and  the 
courts  will  not  interfere  on  the  ground  of  an  improper  apportionment 
or  inequality  of  burden  or  benefit,  unless  there  is  a  palpable  violation 
of  private  rights.  (Reclamation  Dist.  v.  Hagar,  66  Cal.  54,  4  Pac. 
945.) 

It  is  sufficient  if  the  parties  interested  are  given  an  opportunity  to 
be  heard  before  the  lien  becomes  final  upon  their  property,  and  they 
are  not  entitled  to  be  heard  upon  the  question  whether  or  not  tho 
improvement  should  be  made.  (Lent  v.  Tillson,  72  Cal.  404,  14  Pac. 
71;  Board  of  Directors  v.  Tregea,  88  Cal.  334,  26  Pac.  237.) 

Where  the  limits  of  an  assessment  district  are  defined  in  the  stat- 
ute, notice  need  not  be  addressed  to  the  persons  affected  by  name. 
(Lent  V.  Tillson,  72  Cal.  404,  14  Pac.  71.) 

An  act  for  the  protection  of  swamp  lands,  which  provides  for  mak- 
ing assessments  therefor  a  charge  upon  the  lands  benefited,  and  for  a 
sale  of  such  lands  for  such  assessments,  without  any  opportunity  for 
a  hearing  of  the  land  owner  in  regard  to  the  assessment,  and  without 


163  DECLARATION    OF   RIGHTS.  Art.  I,  §  14 

any   suit    or   opportunity   of   defense,   is   invalid.     (Hutson    v.   Wood- 
bridge  Protection  Dist.,  79  Cal.  90,  16  Pac.  549,  21  Pac.  435.) 

The  property  of  a  land  owner  within  an  irrigation  district  is  not 
taken  from  him  without  due  process  of  law,  if  he  is  allowed  a  hear- 
ing at  any  time  before  the  lien  of  an  assessment  for  taxes  levied 
thereon  becomes  final.  (In  re  Madera  Irr.  Dist.,  92  Cal.  296,  27  Am. 
St.  Kep.  106,  14  L.  R.  A.  755,  28  Pac.  272,  675.) 

The  property  of  a  land  owner  is  not  taken  from  him  without  due 
process  of  law  under  the  Wright  Act,  since  a  hearing,  upon  notice^ 
as  to  the  facts  on  which  the  petition  for  the  formation  of  the  district 
is  based,  and  as  to  the  benefit  to  the  land  included  therein,  is  pro- 
vided for.  (Fallbrook  Irr.  Dist.  v.  Bradley,  164  U.  S.  112,  41  L.  Ed. 
369,  17  Sup.  Ct.  Eep.  56.) 

When  the  legal  title  of  the  property  of  irrigation  districts  is  vested 
in  the  district  only  in  trust  for  the  land  owners,  the  rights  of  such 
land  owners  are  private  property  which  cannot  be  taken  without  due 
process  of  law.  (Merchants'  Nat.  Bank  v.  Escondido  Irr.  Dist.,  144 
Cal.  329,  77  Pac.  937.) 

The  "Wright  Act"  providing  for  irrigation  districts  is  constitu- 
tional. (In  re  Central  Irr.  Dist.,  117  Cal.  382,  49  Pac.  354,  and  cases 
there  cited.) 

The  provision  of  the  Street  Improvement  Bond  Act  of  1893,  re- 
quiring the  property  owner,  as  a  condition  for  the  nonissuance  of  an 
assessment  bond  against  his  property,  to  present  to  the  treasurer  a 
certificate  made  by  a  searcher  of  records  that  he  is  the  owner  of 
record  of  the  property,  does  not  deprive  him  of  property  without  due 
process  of  law.     (Schaffer  v.  Smith,  169  Cal.  764,  147  Pac.  976.) 

What  is  due  process  of  law.  See  notes,  24  Am.  Dec.  538;  20  Am. 
St.  Rep.  554;  122  Am.  St.  Rep.  904;  6  R.  C.  L.,  §§430-485,  pp. 
433-485. 

DEPOSITIONS.— This  section  does  not  prevent  the  legislature  from 
providing  that  depositions  taken  on  the  preliminary  examination  may 
be  used  on  the  trial.     (People  v.  Oiler,  66  Cal.  101,  4  Pac.  1066.) 

As  to  the  power  of  the  legislature  to  authorize  the  conditional  ex- 
amination of  witnesses,  see  Willard  v.  Superior  Court,  82  Cal.  456, 
22  Pac.  1120. 

The  provision  of  the  Penal  Code  allowing  depositions  taken  at  the 
preliminary  examination  of  a  defendant  charged  with  murder  to  be 
read  in  evidence  for  the  prosecution  upon  the  trial  is  not  in  conflict 
with  this  section.  (People  v.  Sierp,  116  Cal.  249,  48  Pac.  88;  People 
V.  Cady,  117  Cal.  10,  48  Pac.  908;  People  v.  Clark,  151  Cal.  200,  90 
Pac.  549.) 

Eminent  domain. 

Sec.  14.  Private  property  shall  not  be  taken  or  damaged 
for  public  use  Avithout  just  compensation  having  first  been 
made  to,  or  paid  into  court  for,  the  owner,  and  no  right  of 
way  shall  be  appropriated  to  the  use  of  any  corporation 
other  than  municipal  until  full  compensation  therefor  be 


Art.  I,  §  14  CONSTITUTION  OF  1879.  161 

first  made  in  money  or  ascertained  and  paid  into  court  for 
the  owner,  irrespective  of  any  benefits  from  any  improve- 
ment proposed  by  such  corporation,  which  compensation 
shall  be  ascertained  by  a  jury,  unless  a  jury  be  waived,  as  in 
other  civil  cases  in  a  court  of  record,  as  shall  be  prescribed 
by  law.  The  taking  of  private  property  for  a  railroad  run 
by  steam  or  electric  power  for  logging  or  lumbering  pur- 
poses shall  be  deemed  a  taking  for  a  public  use,  and  any 
person,  firm,  company  or  corporation  taking  private  prop- 
erty under  the  law  of  eminent  domain  for  such  purposes 
shall  thereupon  and  thereby  become  a  common  carrier. 
(Amendment  approved  October  10,  1911.) 

[ORIGINAL   SECTION.] 

Sec.  14.  Private  property  shall  not  be  taken  or  damaged  for 
public  use  without  just  compensation  having  been  first  made  to, 
or  paid  into  court,  for  the  owner,  and  no  right  of  way  shall  be 
appropriated  to  the  use  of  any  corporation  other  than  municipal 
until  full  compensation  therefor  be  first  made  in  money  or  ascer- 
tained and  paid  into  court  for  the  owner,  irrespective  of  any 
benefit  from  any  improvement  proposed  by  such  corporation,  which 
compensation  shall  be  ascertained  by  a  jury,  unless  a  jury  be 
waived,  as  in  other  civil  cases  in  a  court  of  record,  as  shall  be 
prescribed  by  law. 

PRIVATE  PROPERTY  FOR  PUBLIC  USE.— A  municipal  corpora- 
tion has  no  power  to  take  a  lot  to  which  it  has  no  title,  which  is  in 
the  actual  possession  of  another,  who  claims  to  be  the  owner,  although 
he  in  fact  is  not,  and  appropriate  it  to  the  use  of  the  public,  without 
paying  compensation.     (Gunter  v.  Geary,  1  Cal.  462.) 

The  property  of  a  citizen  cannot  be  taken  from  him  for  public  use, 
unless  ample  means  of  remuneration  are  provided.  (McCann  v.  Sierra 
County,  7  Cal.  121.) 

The  only  constitutional  limitation  to  the  taking  of  private  property 
for  public  use  is  that  compensation  shall  first  be  made.  (Hercules 
Water  Co.  v.  Fernandez,  5  Cal.  App.  726,  91  Pac.  401.) 

A  municipal  corporation  cannot  take  private  property  for  public 
use,  without  making  compensation  in  advance  or  providing  a  fund  out 
of  which  compensation  shall  be  made  as  soon  as  the  amount  to  be 
paid  can  b'e  determined.     (Colton  v.  Rossi,  9  Cal.  595.) 

The  legislature  has  no  power  to  take  the  property  of  one  person 
and  give  it  to  another;  nor  can  it  be  taken  for  public  use,  unless 
compensation  to  the  owner  precede  or  accompany  the  taking.  (Gillan 
v.  Hutchinson,  16  Cal.  153.) 

An  act  directing  the  governor  to  take  possession  of  the  state  prison 
in  the  possession  of  a  lessee,  without  making  any  provision  for  com- 
pensation, is  void.     (McCauley  v.  Weller,  12  Cal.  500.) 

The  act  of  1863,  providing  for  the  widening  of  streets  in  San  Fran- 
cisco  by   agreement   with   the   owners,   does   not   deprive   the   owners 


165  DECLARATION    OF    RIGHTS.  Art.  I,  §  14 

of  any  right  or  privilege  guaranteed  by  this  section.  (San  Francisco 
V.  Kiernan,  98  Cal.  614,  33  Pac.  720.) 

Where  property  is  sold  for  taxes  to  the  state  and  the  owner  does 
not  redeem,  there  is  no  constitutional  objection  to  the  state  acquiring 
the  title  free  from  all  equities,  which  it  can  sell  and  convey  to  the 
highest  bidder  for  cash  and  which  will  be  good  as  against  the  former 
owner.     (Chapman  v.  Zobelein,  19  Cal.  App.  132,  124  Pac.  1021.) 

Property. — The  right  of  a  riparian  owner  cannot  be  taken  away, 
except  for  public  use  on  due  compensation.  (Lux  v.  Haggin,  69  Cal. 
255,  372,  4  Pac.  919,  10  Pac.  674.) 

This  section  does  not  apply  to  any  mere  diminution  in  value  of 
abutting  lands  by  the  closing  of  a  street  in  whole  or  in  part,  nor  to 
any  mere  inconvenience  to  abutting  owners  thereby  occasioned,  if 
access  to  their  land  is  not  prevented.  (Brown  v.  Board  of  Supervisors, 
124  Cal.  274,  57  Pac.  82.) 

Although  the  supervisors  have  authority  to  close  a  public  street,  the 
owner  of  adjoining  property  has  an  easement  therein,  of  which  he 
cannot  be  deprived  without  compensation.  (Bigelow  v.  Ballerino,  111 
Cal.  559,  44  Pac.  307.) 

The  right  of  the  owner  of  a  city  lot  to  the  use  of  the  street  adja- 
cent thereto  is  property,  and  any  act  by  which  this  right  is  impaired 
is  to  that  extent  a  damage.  (Eachus  v.  Los  Angeles  etc.  Ry.  Co.,  103 
Cal.  614,  42  Am.  St.  Rep.  149,  37  Pac.  750.) 

The  right  of  the  owner  of  land  abutting  on  a  city  street  to  access 
over  it  to  and  from  his  premises  is  a  right  of  property  of  which  he 
cannot  be  deprived  without  compensation.  (Coates  v.  Atchison  etc. 
Ky.  Co.,  1  Cal.  App.  441,  82  Pac.  640.) 

No  compensation  need  be  made  for  the  vacation  of  a  public  street 
which  has  not  been  dedicated  by  the  owners  of  the  land.  (Levee 
Dist.  No.  9  V.  Farmer,  101  Cal.  178,  23  L.  R.  A.  388,  35  Pac.  569.) 

Section  17  of  article  XII  of  the  Constitution,  permitting  one  rail- 
road to  cross  the  tracks  o.f  another,  is  subject  to  the  provision  of  this 
section  that  compensation  must  first  be  made.  (Boca  etc.  R.  R.  Co.  v. 
Sierra  Valleys  R.  R.  Co.,  2  Cal.  App.  546,  84  Pac.  298.) 

Property  appropriated  to  public  use  is  private  property.  (Boca  etc. 
E.  R.  Co.  v.  Sierra  Valleys  R.  R.  Co.,  2  Cal.  App.  546,  si  Pac.  298.) 

Money  is  not  that  species  of  property  which  the  sovereign  authority 
can  authorize  to  be  taken  in  the  exercise  of  the  right  of  eminent  do- 
main. (Burnett  v.  Sacramento,  12  Cal.  76;  Emery  v.  San  Francisco 
Gas  Co.,  28  Cal.  345.) 

The  leasehold  interest  in  convicts  leased  by  the  state  is  as  much 
property  as  are  lands  held  in  fee.     (People  v.  Brooks,  16  Cal.  11.) 

A  franchise  for  a  street  railroad  is  property  capable  of  being  bene- 
fited by  the  widening  of  the  street.  (Appeal  of  North  Beach  etc. 
R.  R.  Co.,  32  Cal.  499.) 

The  legislature  may  grant  the  right  to  construct  a  railroad  upon  a 
public  street  without  providing  for  compensation  for  the  damage  done 
to  the  owners  of  the  adjacent  property,  provided  the  owners  of  the 
property  are  not  the  owners  usque  ad  filum  viae.  (Carson  v.  Central 
R.  R.  Co.,  35  Cal.  325.) 

A  person  who  owns  lots  fronting  on  a  street  dedicated  by  himself 
to  the  public  use  is  entitled  to  damages  if  a  railroad  company  lays  its. 


Art.  I,  §  14  CONSTITUTION  OF  1879.  166 

track  along  the  street,  and  thereby  obstructs  it  for  the  use  of  teams 
and  vehicles,  and  if  the  value  of  the  lot  is  diminished  thereby. 
(Southern  Fac.  E.  R.  Co.  v.  Reed,  41  Cal.  256.) 

An  act  providing  that  a  tax  collector  shall  receive  the  fees  allowed 
by  law,  and  pay  a  part  of  such  fees  into  the  treasury  for  the  benefit 
of  the  county,  does  not  take  private  property  for  public  use.  (Ream 
V.  Siskiyou  County,  36  Cal.  620.) 

Delegation  of  power  of  eminent  domain.  See  note,  1  Ann.  Gas. 
537. 

Right  of  de  facto  corporation  to  exercise  power  of  eminent  do- 
main.    See  notes,  9  Ann.  Cas.  594;  Ann.  Cas.  1913C,  271. 

Water  apart  from  land  as  subject  to  law  of  eminent  domain.  See 
note,  13  Ann.  Cas.  72. 

Public  use. — The  formation  of  an  irrigation  district  for  the  purpose 
of  reclaiming  arid  land  is  a  public  purpose  for  which  private  prop- 
erty may  be  taken.  (Turloek  Irr.  Dist.  v.  "Williams,  76  Cal.  360,  18 
Pac.  379;  Central  Irr.  Dist.  v.  De  Lappe,  79  Cal.  351,  21  Pac.  825;  Crall 
V.  Poso  Irr.  Dist.,  87  Cal.  140,  26  Pac.  797.) 

The  legislature  is  the  sole  judge  of  the  public  necessity  or  advan- 
tage of  a  proposed  improvement  as  a  public  iise.  (Gilmer  v.  Lime 
Point,  18  Cal.  229.) 

The  words  "public  use"  mean  a  use  which  concerns  the  whole  com- 
munity, as  distinguished  from  a  particular  individual  or  a  particular 
number  of  individuals.  But  it  is  not  necessary  that  each  and  every 
individual  member  of  society  should  have  the  same  degree  of  interest 
in  this  use,  or  be  personally  or  directly  affected  by  it,  in  order  to 
make  it  public.     (Gilmer  v.  Lime  Point,  18  Cal.  229.) 

When  the  legislature  specially  designates  a  particular  thing  as  a 
public  use,  or  delegates  that  function  to  a  local  board,  the  courts  will 
not  interfere  with  this  legislative  discretion,  but  when  the  legislature 
simply  designates  a  general  use  as  public,  the  courts  must  determine 
whether  the  particular  use  is  public.  (Madera  R.  Co.  v.  Raymond 
Granite  Co.,  3  Cal.  App.  668,  87  Pac.  27.) 

To  condemn  land  within  the  state  for  a  United  States  fort  or  other 
military  or  naval  purpose  is  to  condemn  land  for  a  public  use.  (Gil- 
mer V.  Lime  Point,  18  Cal.  229.) 

The  only  test  of  the  admissibility  of  the  power  of  the  state  to  con- 
demn land  for  "public  use"  is  that  the  particular  object  for  which  the 
land  is  condemned  tends  to  promote  the  general  interest,  in  its  rela- 
tion to  any  legitimate  object  of  government.  (Gilmer  v.  Lime  Point, 
IS  Cal.  229.) 

The  "public  use"  is  left  in  large  measure  to  legislative  determina- 
tion; and  the  legislative  resolve,  by  which  a  tax  is  imposed  or  private 
property  taken,  is  such  legislative  determination.  (Stockton  etc.  R. 
R.  Co.  V.  Common  Council  of  Stockton,  41  Cal.  147;  Contra  Costa 
R.  Co.  V.  Moss,  23  Cal.  323.) 

But  the  legislative  determination  that  a  certain  business  is  a  public 
use  is  not  conclusive  of  its  character.  (Consolidated  Channel  Co.  v. 
Central  Pac.  R.  R.  Co.,  51  Cal.  269.) 

A  railroad  for  the  transportation  of  passengers  and  freight  is  a 
public  use.     (San  Francisco  etc.  R.  R.   Co.  v.  Caldwell,  31  Cal.  367; 


167  DECLARATION    OF   RIGHTS.  Art.  I,  §  14 

Contra  Costa  etc.  R.  Co.  v.  Moss,  23  Cal.  323;  Stockton  etc.  R.  R.  Co. 
V.  Common  Council  of  Stockton,  41  Cal.  147;  Napa  Valley  R.  R.  Co.  v. 
Board  of  Suprs.,  30  Cal.  435.) 

The  taking  of  land  by  a  drainage  district  for  its  ditch  is  a  public 
use.  (Laguna  Drainage  District  v.  Charles  Martin  Co.,  144  Cal.  209, 
77  Fae.  933.) 

The  formation  of  an  irrigation  district  under  the  Wright  Act  for 
the  purpose  of  reclaiming  arid  land  is  a  public  purpose  for  which  pri- 
vate property  may  be  taken.  (Fallbrook  Irr.  Dist.  v.  Bradley,  164 
U.  S.  112,  41  L.  Ed.  369,  17  Sup.  Ct.  Rep.  56.) 

"What  is  taking  property  for  public  use.     See  notes,   16  Am.  St. 
Rep.  610;  18  L.  R.  A.  166. 

Power  of  the  legislature  to  determine  what  is  a  public  use.     See 

note,  88  Am.  St.  Rep.  926. 
Public  use,  and  necessity  for  taking,  whether  a  legislative  or  a 

judicial  question.     See  note,  42  Am.  St.  Rep.  406. 

Uses  for  which  power  of  eminent  domain  cannot  be  taken.     See 

note,  102  Am.  St.  Rep.  809. 
Right  to  take  lands  already  held  for  a  public  use.     See  notes,  24 

Am.  Rep.  551;  40  Am.  Rep.  748. 
"What  constitutes  public  use  for  which  property  may  be  taken  by 

eminent  domain.     See  notes,  2  Ann.  Cas.  50;  14  Ann.  Cas.  903; 

Ann.  Cas.  1912D,  1002. 
Irrigation  as  public  use.     See  notes,  1  Ann.  Cas.  304;  1  L,  R.  A. 

(N.  S.)  208;  22  L.  R.  A.  (N.  S.)  162;  33  L.  R.  A.  (N.  S.)  807. 

Private  use. — The  legislature  cannot  take  private  property  for  a 
private  use,  and  it  must  declare  the  purpose  to  be  one  of  public  neces- 
sity or  convenience.  (Nickey  v.  Stearns  Ranchos  Co.,  126  Cal.  150,  58 
Fac.  459;  Consolidated  Channel  Co.  v.  Central  Pac.  R.  R.  Co.,  51  Cal. 
269;  Brenham  v.  Story,  39  Cal.  179;  Sherman  v.  Buick,  32  Cal.  241,  91 
Am.  Dec.  577.) 

Thus  an  act  permitting  a  person  to  build  a  flume  on  the  land  of 
another  to  carry  off  the  tailings  from  his  mine  is  void.  (Consolidated 
Channel  Co.  v.  Central  Pac.  R.  R.  Co.,  51  Cal.  269.) 

Also  an  act  giving  a  right  to  miners  to  enter  upon  private  property, 
where  no  such  right  existed  anterior  to  its  passage.  (Gillan  v. 
Hutchinson,  16  Cal.  153.) 

Also  an  act  authorizing  an  administrator  to  sell  real  property  be- 
longing to  the  estate  of  his  decedent,  who  died  before  the  passage  of 
the  act,  except  in  satisfaction  of  the  liens  of  creditors,  for  the  sup- 
port of  the  family,  or  to  pay  the  expenses  of  administration.  (Bren- 
ham V.  Story,  39  Cal.  179.) 

The  legislature  has  power  to  open  so-called  "private  roads,"  from 
main  roads  to  the  residences  or  farms  of  individuals.  The  fact  that 
they  are  called  "private"  is  immaterial,  since  all  roads  are  public. 
(Sherman  v.  Buick,  32  Cal.  241,  91  Am.  Dec.  577;  County  of  Madera 
v.  Raymond  Granite  Co.,  139  Cal.  128,  72  Pac.  915.) 

Right  to  condemn  lands  for  private  ways  and  roads.     See  note,  91 
Am.  Dec.  585. 


Art.  I,  §  14  CONSTITUTION  OF  1879.  168 

Condemnation  of  property  for  private  use.     See  note,  1  Ann.  Cas. 

188. 
Eight  of  railroad  company  to  condemn  land  for  spur  to  private 

establishment.     See  notes,  7  Ann.  Cas.  835;   13  Ann.  Cas.  1012; 

Ann.  Cas.  1912D,  234. 

Damaged. — The  provision  of  this  section  against  property  being 
damaged  for  public  use  is  not  found  in  the  Constitution  of  1849.  As 
to  the  meaning  of  the  word  "damaged"  as  used  in  this  section,  see 
Keardon  v.  San  Francisco,  66  Cal.  492,  501-506,  56  Am.  Eep.  109,  6 
rac.  317. 

A  mere  infringement  of  the  owner's  personal  pleasure  or  enjoyment, 
or  merely  rendering  the  property  less  desirable  for  certain  purposes, 
or  even  causing  personal  annoyance  and  discomfort,  does  not  consti- 
tute a  damage  within  the  meaning  of  this  section.  (Eachus  v.  Los 
Angeles  etc.  Ry.  Co.,  103  Cal.  614,  42  Am.  St.  Rep.  149,  37  Pac.  750.) 

Digging  and  maintaining  ditches  and  drains  across  private  lands  is 
a  taking  of  property.  (Nickey  v.  Stearns  Ranchos  Co.,  126  Cal.  150, 
58  Pac.  459.) 

Drainage  of  land  as  public  use  within  law  of  eminent  domain. 
See  notes,  20  Ann.  Cas.  272;  49  L.  E.  A.  781;  1  L.  E.  A.  (N.  S.) 
208;  22  L.  R.  A.  (N.  S.)  163. 

Where  the  damage  is  not  the  natural,  certain  and  immediate  con- 
sequences of  an  improvement,  compensation  need  not  be  made  in  ad- 
vance. (De  Baker  v.  Southern  Cal.  Ry.  Co.,  106  Cal.  257,  46  Am.  St. 
Eep.  237,  39  Pac.  610.) 

Consequential  damages  to  property  from  proper  exercise  of  gov- 
ernmental power  a  taking.     See  note,  4  Ann.  Cas.  1185. 

Streets. — A  city  is  liable  for  damages  caused  the  owner  of  an  abut- 
ting lot  by  excavating  the  street  in  front  thereof,  in  pursuance  of  a 
contract  let  by  the  city  for  that  purpose.  (Eachus  v.  Los  Angeles, 
130  Cal.  492,  80  Am.  St.  Eep.  147,  62  Pac.  829;  Reardon  v.  San  Fran- 
cisco, 66  Cal.  492,  56  Am.  Rep.  109,  6  Pac.  317.) 

The  damage  for  which  compensation  must  first  be  paid  is  damage 
other  than  such  as  is  sustained  in  common  with  other  abutters  on  the 
street,  or  the  general  public,  that  is  a  special  injury  received  over 
and  above  such  common  injury.  (McCray  v.  Manning,  22  Cal.  App. 
25,  133  Pac.  17.) 

Tlie  fact  that  the  ingress  and  egress  to  property  will  h6  affected 
during  the  time  an  improvement  is  being  made  does  not  constitute 
damage  that  must  bo  compensated.  (McCray  v.  Manning,  22  Cal. 
App.  25,  133  Pac.  17.) 

Damages  caused  by  the  raising  of  a  street  to  the  oflScial  grade  can- 
not be  pleaded  as  a  defense  to  an  action  brought  to  foreclose  the  lien 
for  improving  the  street.  (Hornung  v.  McCarthy,  126  Cal.  17,  58  Pac. 
303.) 

An  owner  of  land  abutting  upon  a  street  is  entitled  to  compensa- 
tion for  any  injury  to  his  property,  which  he  sustains  over  and  above 
that  sustained  in  common  with  other  abutting  owners,  resulting  from 
a  change  in  the  grade  of  the  street.     (Eachus  v.  Los  Angeles  Ry.  Co., 


169  DECLARATION    OF   RIGHTS.  Art.  I,  §  14 

103  Cal.  614,  42  Am.  St.  Eep.  149,  37  Pac.  750;  Jennings  v.  Le  Rov, 
63  Cal.  397.) 

But  a  city  is  not  responsible  for  the  unauthorized  act  of  its  officers 
in  raising  the  grade  of  a  street  and  thus  damaging  adjoining  property. 
(Sievers  v.  San  Francisco,  115  Cal.  648,  56  Am.  St.  Eep.  153,  47  Pac. 
687.) 

An  owner  of  property  fronting  on  a  public  street  in  a  municipality 
is  entitled,  in  the  absence  of  waiver  by  him,  to  recover  from  the  city 
compensation  for  the  injury  done  to  his  property  by  the  grading  of 
the  street  to  a  new  grade,  but  no  statute  or  charter  provision  effecting 
a  waiver  by  the  owner  should  bar  the  owner  who  has  not  presented 
his  claim  in  accord  with  its  terms  in  the  absence  of  clear  provision 
therein  that  such  shall  be  the  effect.  (Sala  v.  City  of  Pasadena, 
162  Cal.  714,  124  Pac.  539.) 

To  change  the  channel  of  a  natural  watercourse  so  as  to  increase 
the  flow  of  water  in  another  watercourse,  to  the  injury  of  adjoining 
lands,  is  a  violation  of  this  section.  (Rudel  v.  Los  Angeles,  118  Cal. 
281,  50  Pac.  400;  Conniff  v.  San  Franei'sco,  67  Cal.  45,  7  Pac.  41;  Tyler 
V.  Tehama  Co.,  109  Cal.  618,  42  Pac.  240.  But  see  Green  v.  Swift,  47 
Cal.  536;  Larrabee  v.  Cloverdale,  131  Cal.  96,  63  Pac.  143.) 

A  municipal  corporation  is  liable  for  damages  caused  by  the  con- 
struction of  sewers,  etc.,  in  such  a  manner  that  the  surface  water  of 
a  large  territory,  which  did  not  naturally  flow  in  that  direction,  is 
gathered  into  a  body  and  precipitated  upon  private  property.  (Stan- 
ford V.  San  Francisco,  111  Cal.  198,  43  Pac.  605.) 

But  a  municipal  corporation  is  not  liable  for  damages  caused  by 
the  prevention  of  the  flow  of  surface  water  from  the  lot  of  a  private 
owner,  by  reason  of  the  raising  of  a  street  to  the  grade  established 
by  law,  where  such  surface  water  does  not  run  in  a  natural  channel 
across  the  lot.  (Corcoran  v.  Benicia,  96  Cal.  1,  31  Am.  St.  Rep.  171, 
30  Pac.  798;  Lampe  v.  San  Francisco,  124  Cal.  546,  57  Pac.  461,  1001.) 

A  statute  exempting  a  municipal  corporation  from  liability  for 
damages  for  injuries  sustained  by  any  person  on  its  graded  streets, 
but  making  the  officers  of  the  city  liable  therefor,  is  valid.  (Parsons 
V.  San  Francisco,  23  Cal.  462.) 

A  contractor  of  the  city  is  not  liable  under  this  provision  for  dam- 
age to  private  property  caused  by  a  public  improvement.  (De  Baker 
V.  Southern  Cal.  Ry.  Co.,  106  Cal.  257,  46  Am.  St.  Rep.  237,  39  Pac, 
610.) 

The  street  opening  act  (Stats.  1889,  p.  70)  is  not  violative  of  this 
section.  The  provisions  of  the  law,  so  far  as  they  pertain  to  the 
assessment  of  its  lands  in  the  district  for  special  benefits,  are  refer- 
able to  the  sovereign  power  of  taxation.  (Clute  v.  Turner,  157  Cal. 
73,  106  Pac.  240.) 

Procedure. — Section  1254  of  the  Code  of  Civil  Procedure,  providing 
that  the  plaintiff  in  an  action  of  eminent  domain  may  enter  into  pos- 
session without  first  making  compensation,  is  in  violation  of  this  sec- 
tion. (Steinhart  v.  Superior  Court,  137  Cal.  575,  92  Am.  St.  Rep. 
183,  59  L.  R.  A.  404,  70  Pac.  629;  Beveridge  v.  Lewis,  137  Cal.  619,  92 
Am.  St.  Rep.  188,  59  L.  R.  A.  581,  67  Pac.  1040,  70  Pac.  1083.  But  see 
Spring  Valley  Waterworks  v.  Drinkhouse,  95  Cal.  220,  30  Pac.  218.) 


Art.  I,  §  14  CONSTITUTION  OF  1879,  370 

A  statute  allowing  the  plaintiff  to  take  possession  upon  the  filing  of 
a  bond  is  void.  (Vilhac  v.  Stockton  etc.  R.  R.  Co.,  53  Cal.  208;  San 
Mateo  Waterworks  v.  Sharpstein,  .50  Cal.  284;  Sanborn  v.  Belden,  51 
Cal.  266.     But  see  Fox  v.  Western  Pac.  R.  R.  Co.,  31  Cal.  538.) 

Section  1254  of  the  Code  of  Civil  Procedure  authorizing  the  plain- 
tiff in  eminent  domain  to  be  put  into  possession  upon  making  a  proper 
deposit  in  court  is  constitutional.  (Heilbron  v.  Superior  Court,  151 
Cal.  271,  90  Pac.  706;  Reed  Orchard  Co.  v.  Superior  Court,  19  Cal. 
App.  648,  128  Pac.  9,  18.) 

This  provision  contemplates  and  provides  for  a  proceeding  in  court 
in  all  cases  w^here  private  property  is  taken  for  a  public  use,  and 
prohibits  any  other  proceeding  to  that  end;  and  the  owner  is  entitled 
to  a  jury  trial  for  the  purpose  of  ascertaining  the  damages.  (Weber 
V.  Board  of  Suprs.  Santa  Clara  Co.,  59  Cal.  265;  Trahern  v.  Board  of 
Suprs.  of  San  Joaquin  Co.,  59  Cal.  320.) 

The  means  of  compensation  must  be  provided  before  the  property 
is  taken.     (McCauley  v.  Weller,  12  Cal.  500.) 

If  failure  be  made  in  paying  or  providing  such  compensation,  the 
party  may  retake  possession  of  the  property.  (Colton  v.  Rossi,  9  Cal. 
595.) 

The  state  may  select  its  own  agents  and  agencies  in  exercising  the 
power  of  eminent  domain,  and  may  select  foreign  corporations  or  gov- 
ernments.    (Gilmer  v.  Lime  Point,  18  Cal.  229.) 

The  provision  for  just  compensation  only  requires  that  a  certain 
and  adequate  remedy  be  provided  by  which  the  owner  can  obtain  his 
compensation  without  unreasonable  delay;  and  a  law  providing  for  a 
jury  to  determine  the  value,  that  the  money  be  paid  into  the  county 
treasury  for  the  owner,  to  be  paid  to  him  when  his  ownership  is  as- 
certaiued,  is  valid.     (Gilmer  v.  Lime  Point,  18  Cal.  229.) 

An  act  providing  for  a  proposed  alteration  of  a  public  road,  and 
requiring  persons  claiming  compensation  for  land  to  be  taken  to  pre- 
sent their  claims  within  a  certain  time,  or  be  deemed  as  waiving  all 
right  to  damages,  is  valid.     (Potter  v.  Ames,  43  Cal.  75.) 

It  is  competent  for  the  legislature  to  prescribe  the  several  steps  to 
be  pursued  in  the  assertion  of  the  right  to  compensation  for  land 
appropriated  for  public  use,  but  the  prescribed  procedure  must  not 
destroy  or  substantially  impair  the  right  itself.  (Potter  v.  Ames,  43 
Cal.  75.) 

The  fact  to  be  ascertained  is  the  value  of  the  land  at  the  time  it  is 
taken,  and  testimony  to  prove  the  annual  net  profits  is  not  admissible. 
(Stockton  etc.  R.  Co.  v.  Galgiana,  49  Cal.  139.) 

Compensation. — An  ordinance  fixing  water  rates  must  allow  a  just 
and  reasonable  compensation  to  the  water  company  for  the  property 
used  and  the  services  furnished  by  it.  (San  Diego  Water  Co.  v.  San 
Diego,  118  Cal.  556,  62  Am.  St.  Rep.  261,  38  L.  R.  A.  460,  50  Pac.  633.) 

In  a  condemnation  proceeding  the  land  owner  is  not  liable  for  costs, 
but  is  entitled  to  recover  his  own  costs  from  the  plaintiff.  (San  Pran- 
eisco  V.  Collins,  98  Cal.  259,  33  Pac.  56.) 

No  rule  of  court,  however  general  its  terms  may  be  for  the  allow- 
ance of  costs  to  a  successful  appellant,  as  rule  XXIII  of  the  supreme 
court,  may  contravene  a  privilege  based  upon  the  constitutional  right 


171  DECLARATION    OF    RIGHTS.  Art.  I,  §  14 

of  the  land  owner.  (San  Joaquin  etc.  Irr.  Co.  v.  Stevinson,  165  Cal. 
540,  132  Pac.  1021.) 

Where  a  railroad  company,  prior  to  the  commencement  of  proceed- 
ings to  condemn  a  right  of  way,  but  with  a  bona  fide  intent  to  com- 
mence such  proceedings,  erects  structures  thereon,  it  is  not  required 
to  pay  for  the  structures  so  erected  in  the  condemnation  proceeding. 
(Albion  River  R.  R.  Co.  v.  Hesser,  84  Cal.  4.35,  24  Pac.  288;  San  Fran- 
cisco etc.  R.  R.  Co.  T.  Taylor,  86  Cal.  246,  24  Pac.  1027.) 

The  provision  of  section  1249  of  the  Code  of  Civil  Procedure  that, 
for  the  purpose  of  assessing  compensation  and  damages,  the  right 
thereto  shall  be  deemed  to  have  accrued  at  the  date  of  the  summons, 
is  not  in  conflict  with  this  provision.  (California  Southern  R.  R.  Co. 
V.  Kimball,  61  Cal.  90;  Tehama  Co.  v.  Bryan,  68  Cal.  57,  8  Pac.  673; 
Sacramento  Terminal  Co.  v.  McDougall,  19  Cal.  App.  562,  126  Pac.  503. 

Under  the  former  Constitution,  where  the  land  taken  is  a  part  only 
of  a  tract,  the  difference  between  the  value  of  the  tract  without  the 
improvement  and  with  it  is  the  compensation  to  be  made.  (San  Fran- 
cisco etc.  R.  R.  Co.  V.  Caldwell,  31  Cal.  367.) 

Both  the  injury  to  the  land  and  the  benefit  to  it  should  be  consid- 
ered.    (San  Francisco  etc.  R.  R.  Co.  v.  Caldwell,  31  Cal.  367.) 

Section  1249  of  the  Code  of  Civil  Procedure,  fixing  the  damages  at 
the  date  of  the  summons,  is  constitutional.  (Los  Angeles  v.  Gager,  10 
Cal.  App.  378,  102  Pac.  17.) 

The  defendant  is  entitled  to  receive  for  a  strip  of  land  taken  for  an 
alley  an  amount  equal  to  that  for  which  it  could  have  been  sold  in 
the  open  market,  on  the  day  of  the  summons,  for  cash,  after  reason- 
able time  taken  by  the  owner  to  make  the  sale.  (Santa  Ana  v.  Brun- 
ner,  132  Cal.  234,  64  Pac.  287.) 

The  provision  of  this  section,  providing  for  compensation,  "irre- 
spective of  any  benefit  from  any  improvement  proposed,"  is  not  lim- 
ited to  the  land  taken,  but  also  to  the  land  not  taken,  and  the  dam- 
ages to  the  property  not  taken  must  be  fixed,  irrespective  of  any 
benefit  which  may  result  from  the  proposed  improvement.  (San  Ber- 
nardino etc.  Ry.  Co.  v.  Haven,  94  Cal.  489,  29  Pac.  875.) 

The  provision  of  this  section,  prohibiting  any  deduction  from  the 
damages  to  land  not  taken  of  the  amount  of  benefits  accruing  from 
the  improvement  to  such  land,  only  applies  to  "corporations  other 
than  municipal,"  and  does  not  apply  to  individuals.  (Moran  v.  Ross, 
79  Cal.  549,  21  Pac.  958.) 

In  a  proceeding  by  a  railroad  corporation  to  condemn  land  for  its 
road,  the  compensation  to  be  awarded  the  owner  must  be  ascertained 
irrespective  of  any  benefit  that  will  accrue  to  the  remainder  of  his 
land  from  the  building  of  the  road.  (Pacific  Coast  Ry.  Co.  v.  Porter, 
74  Cal.  261,  15  Pac.  774.) 

An  act  requiring  commissioners,  in  assessing  the  value  of  lands 
sought  to  be  taken  by  a  railroad  company,  to  make  allowance  for  any 
benefit  that  will  accrue  to  the  person  whose  lands  are  taken,  is  valid. 
(San  Francisco  etc.  R.  R.  Co.  v.  Caldwell,  31  Cal.  367.) 

The  increased  cost  of  irrigation  which  would  be  caused  by  the 
building  of  a  railroad  is  a  legitimate  subject  of  inquiry  for  the  pur- 
pose of  ascertaining  the  damage  sustained  by  the  owner.  (San  Ber- 
nardino etc.  Ry.  Co.  v.  Haven,  94  Cal.  489,  29  Pac.  875.) 


Art.  I,  §  14  CONSTITUTION  OF  1879.  172 

The  term  "just  compensation,"  used  in  this  section,  does  not  include 
reasonable  disbursements  made  by  the  owner  of  the  property  for 
attorneys  at  the  trial.  (Pacific  Gas  etc.  Co.  v.  Chubb,  24  Cal.  App. 
265,  141  Pac.  36.) 

In  the  case  of  all  public  utilities  the  power  of  eminent  domain  has 
been  vested  by  the  legislature  in  the  railroad  commission  with  power 
to  determine  the  public  convenience  and  make  an  award  for  damages 
without  the  intervention  of  a  jury.  While  this  is  constitutional,  the 
commission  must,  in  the  exercise  of  its  powers  of  eminent  domain, 
make  compensation  for  the  taking  of  the  property  of  a  public  utility 
and  decree  payment  thereof  in  advance  of  the  actual  taking.  (Pacific 
Telephone  etc.  Co.  v.  Eshleman,  166  Cal.  640,  Ann.  Cas.  1915C,  822, 
50  L.  R.  A.  (N.  S.)  652,  137  Pac.  1119.) 

An  order  of  the  railroad  commission  requiring  a  long-distance  tele- 
phone company  to  connect  physically  with  the  lines  of  a  local  com- 
peting company  and  give  the  latter  long-distance  service  involves  the 
taking  of  the  former's  property,  and  it  not  having  been  compensated, 
the  order  is  void.  (Pacific  Telephone  etc.  Co.  v.  Eshleman,  166  Cal. 
640,  Ann.  Cas.  1915C,  822,  50  L.  R.  A.  (N.  S.)  652,  137  Pac.  1119.) 

A  county  is  not  a  municipal  corporation  within  the  meaning  of  this 
section.  (County  of  San  Mateo  v.  Coburn,  130  Cal.  631,  63  Pac.  78, 
621.) 

Compensation  where  lands  are  taken  for  right  of  way  of  a  rail- 
road.    See  note,  19  A™-  St.  Rep.  458. 
Right  to  compensation  for  taking  private  right  of  way.     See  note, 

19  Ann.  Cas.  6S1. 
Right  to  compensation  for  improvements  placed  upon  land  by  con- 
demnor without  authority.     See  notes,  6  Ann.  Cas.  382;  13  Ann. 
Cas.  980;  Ann.  Cas.  1912A,  244. 
Right  of  land  owner  to  compensation  for  improvements  placed  by 
him    on    land    after    institution    of    condemnation    proceedings. 
See  note,  17  Ann.  Cas.  1033. 
Price  paid  by  condemnor  for  other  property  for  use  in  same  en- 
terprise as  evidence  of  value  of  land  condemned.     See  notes,  20 
Ann.  Cas.  695;  Ann.  Cas.  1914A,  375. 
Time  with  reference  to  which  value  of  property  taken  by  eminent 

domain  is  to  be  estimated.     See  note,  9  Ann.  Cas.  115. 
Offer  to  purchase  by  third  person  as  evidence  of  value  of  prop- 
erty taken  in  eminent  domain.    See  note,  5  Ann.  Cas.  971. 

Assessments. — An  assessment  upon  a  lot  adjacent  to  a  street  to 
pay  for  improvements  made  on  the  street  cannot  be  maintained  when 
the  lot  has  received  only  an  injury  by  the  work  on  the  street;  and 
therefore  in  no  case  can  the  owner  be  made  personally  liable  for  any 
deficiency  after  the  lot  has  been  exhausted.  (Creighton  v.  Manson, 
27  Cal.  613;  Taylor  v.  Palmer,  31  Cal.  240;  Gaffney  v.  Gough,  36  Cal. 
104;  Coniff  v.  Hastings,  36  Cal.  292.  But  see  Walsh  v.  Mathews,  29 
Cal.  123.) 

Benefits  for  street  improvements  accrue  to  the  land  and  not  to  the 
buildings.     (Appeal  of  Piper,  32  Cal.  530.) 


173  DECLARATION    OF    RIGHTS.  Art.  I,  §  14 

The  so-called  "front-foot"  method  of  assessment  for  street  improve- 
ments has  been  many  times  upheld  in  this  state.  (Chambers  v.  Sat- 
terlee,  40  Cal.  497;  Hadley  v.  Dagiie,  130  Cal.  207,  62  Pae.  500;  Cohen 
V.  Alameda,  124  Cal.  504,  57  Pac.  377;  Emery  v.  San  Francisco  Gas 
Co.,  28  Cal.  345;  Emery  v.  Bradford,  29  Cal.  75;  Taylor  v.  Palmer,  31 
Cal.  240;  Whiting  v.  Quackenbush,  54  Cal.  306;  Whiting  v.  Townsend, 
57  Cal.  515;  Lent  v.  Tillson,  72  Cal.  404,  14  Pac.  71;  Jennings  v.  Le 
Breton,  80  Cal.  8,  21  Pac.  1127;  San  Francisco  Pa  v.  Co.  v.  Bates,  134' 
Cal.  39,  66  Pac.  2;  Banaz  v.  Smith,  133  Cal.  102,  65  Pae.  309.) 

Considerable  doubt  was  cast  upon  the  correctness  of  these  decisions 
by  the  decision  of  the  United  States  supreme  court  in  Norwood  v. 
Baker,  172  U.  S.  269,  43  L.  Ed.  443,  19  Sup.  Ct.  Rep.  187,  but  the  doc- 
trine of  these  cases  has  been  since  sustained  by  the  decision  of  that 
court  in  Tonawanda  v.  Lyon,  181  U.  S.  389,  45  L.  Ed.  908,  21  Sup.  Ct. 
Kep.  609. 

An  assessment  for  a  street  improvement  upon  the  front-foot  system 
is  an  exercise  of  the  power  of  taxation,  and  not  of  eminent  domain. 
(Emery  v.  San  Francisco  Gas  Co.,  28  Cal.  345.) 

Benefits  may  be  assessed  in  the  ratio  of  their  value.  (Appeal  of 
Piper,  32  Cal.  530.) 

An  assessment  upon  an  assessment  district  is  valid.  (Appeal  of 
Piper,  32  Cal.  530.) 

The  street  bond  act,  authorizing  the  imposition  of  a  charge  upon 
property  for  ten  years  is  not  invalid,  as  taking  private  property  for 
public  use.  (German  Sav.  etc.  Soc.  v.  Eamish,  138  Cal.  120,  69  Pac. 
89,  70  Pac.  1067.) 

Deduction  of  benefits  in  assessing  damages  for  land  taken  by 
eminent  domain  proceedings.  See  notes,  13  Ann.  Cas.  603;  19 
Ann.  Cas.  859;  Ann.  Cas.  1914B,  478. 

Contingent  advantage  to  owner  as  element  of  compensation.  See 
note,  Ann.  Cas.  1914B,  512. 

Jury.— The  right  of  trial  by  jury  in  cases  of  eminent  domain  did 
not  exist  prior  to  the  new  Constitution.  (Koppikus  v.  State  Capitol 
Commrs.,  16  Cal.  248;  People  v.  Blake,  19  Cal.  579.) 

A  property  owner  whose  property  is  damaged  by  a  public  improve- 
ment is  entitled  to  a  jury  trial  for  the  purpose  of  ascertaining  the 
damages,  and  he  cannot  be  deprived  of  this  constitutional  guaranty 
by  the  decision  of  a  city  council  that  he  is  not  damaged.  (Wilcox  v. 
Engebretsen,  160  Cal.  288,  116  Pac.  750.) 

This  section  gives  to  the  defendants  in  a  condemnation  suit  the 
absolute  right  to  a  jury  trial  of  the  issuance  of  compensation;  but 
the  legislature  is  left  free  to  provide  as  it  may  see  fit  for  the  method 
of  trial  of  other  issues.  (Vallejo  etc.  R.  R.  Co.  v.  Reed  Orchard  Co., 
169   Cal.   545,   147   Pac.   238.) 

Right  to  trial  by  jury  in  eminent  domain  proceedings.  See  note, 
18  Ann.  Cas.  680. 

Police  power. — The  police  power  will  not  authorize  the  state  to 
take  private  property  for  public  use  without  compensation,  when  such 
property  can  be  condemned  and  paid  for.  (People  v.  Elk  River  Mill 
etc.  Co.,  107  Cal.  221,  48  Am.  St.  Rep.  125,  40  Pac.  531.) 


All.  I,  §  15  CONSTITUTION  OF  1879,  174 

This  provision  does  not  prevent  the  legislature  from  prohibiting  the 
conducting  of  offensive  trades  within  the  limits  of  a  city.  (Ex  parte 
Shrader,  33  Cal.  279.) 

A  person  having  on  hand  large  quantities  of  wine  at  the  time  of 
its  enactment  is  not  deprived  of  his  property  without  just  compensa- 
tion by  a  county  ordinance  which  prohibits  the  sale  of  liquors  within 
the  county.  (Ex  parte  Young,  154  Cal.  317,  22  L.  K.  A.  (N.  S.)  330, 
97  Fac.  822.) 

The  restriction  of  a  municipal  ordinance  which  undertakes  to  abso- 
lutely forbid  the  erection  and  maintenance  of  billboards  for  adver- 
tising purposes  is,  if  not  a  taking  pro  tanto  of  the  property,  a  damag- 
ing thereof,  for  which  the  owner  is  entitled  to  compensation.  (Var- 
ney  &  Green  v.  Williams,  155  Cal.  318,  132  Am.  St.  Kep,  88,  21  L.  E. 
A.  (N.  S.)  741,  100  Pac.  867.) 

Imprisonment  in  civil  cases. 

Sec.  15.  No  person  shall  be  imprisoned  for  debt  in  any 
civil  action,  on  mesne  or  final  process,  unless  in  cases  of 
fraud,  nor  in  civil  actions  for  torts,  except  in  cases  of  will- 
ful injury  to  person  or  property ;  and  no  person  shall  be 
imprisoned  for  a  militia  fine  in  time  of  peace. 

IMPRISONMENT  FOR  DEBT.— An  assault  and  battery  is  not  a 
case  of  fraud  within  the  meaning  of  this  provision.  (Ex  parte  Tra- 
der, 6  Cal.  239.) 

In  a  suit  to  recover  money  received  by  a  person  as  agent,  such 
agent  cannot  be  arrested  without  showing  some  fraudulent  conduct 
on  his  part,  or  a  demand  on  him  by  the  principal  and  a  refusal  to  pay. 
(In  re  Holdforth,  1  Cal.  438.) 

The  proceedings  for  the  settlement  of  an  estate  are  not  a  civil  ac- 
tion within  the  meaning  of  this  section.  (Ex  parte  Smith,  53  Cal. 
204.) 

Nor  is  money  in  the  hands  of  an  executor  a  "debt"  within  the 
meaning  of  this  section.     (Ex  parte  Smith,  53  Cal.  204.) 

To  punish  a  person  by  imprisonment  for  failure  to  pay  a  debt  to 
a  receiver  is  in  violation  of  this  provision.  (Knutte  v.  Superior 
Court,  134  Cal.  660,  66  Pac.  875.) 

By  this  provision  the  right  of  a  creditor  to  control  and  confine  the 
person  of  his  debtor  by  the  process  of  arrest  has  been  abolished,  save 
in  the  cases  of  fraud.      (In  re  Crane,  26  Cal.  App.  22,  145  Pac.  733.) 

The  act  of  1911  providing  for  the  time  of  payment  of  wages  is  un- 
constitutional in  that  it  in  effect  permits  an  imprisonment  on  mesne 
process  for  debt.     (In  re  Crane,  26  Cal.  App.  22,  145  Pac.  733.) 

What  statutes  violate  prohibitions  against  imprisonment  for  debt. 

See  note,  37  Am.  St.  Eep.  758. 
Provision  against  imprisonment  for  debt  as  applicable  to  im- 
prisonment for  failure  to  pay  alimony.  See  nc/te,  Ann.  Cas. 
1913E,  1087. 
Statute  punishing  frauds  on  innkeepers  as  within  constitutional 
provision  against  imprisonment  for  debt.  See  note,  16  Ann. 
Cas.  1231. 


175  DECLARATION    OF    RIGHTS.  Art.  I,  §  16 

Laws  prohibited — Bills  of  attainder,  ex  post  facto,  etc. 

Sec.  16.  No  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts,  shall  ever  be  passed. 

IMPAIRING  OBLIGATION  OF  CONTRACTS— Contract.— A  liquor 
license  is  not  a  contract  within  the  meaning  of  this  section,  and  may 
be  revoked  at  any  time.      (Hevren  v.  Beed,  126  Cal.  219,  58  Pac.  336.) 

No  person  has  a  vested  right  to  an  unenforced  penalty;  and  if  such 
a  penalty  is  reduced  to  judgment,  the  judgment  will  be  reversed  upon 
appeal,  if,  pending  the  appeal,  the  statute  imposing  the  penalty  is 
repealed.     (Anderson  v.  Byrnes,  122  Cal.  272,  54  Pac.  821.) 

As  to  whether  or  not  the  charter  of  a  corporation  is  a  contract 
within  the  meaning  of  this  provision,  see  Spring  Valley  Waterworks 
v.  Board  of  Suprs.  of  San  Francisco,  61  Cal.  3. 

A  legislative  grant  of  property  to  a  municipal  corporation  is  an 
executed  contract,  and  as  such  within  this  clause.  (Grogan  v.  San 
Francisco,  18  Cal.  590.) 

The  filing  of  the  copy  of  the  order  of  the  supervisors  declaring  cer- 
tain territory  duly  incorporated  as  a  city  in  the  office  of  the  secretary 
of  state,  and  the  resulting  incorporation  of  the  city,  is  the  equivalent 
of  the  passage  of  a  law  within  the  meaning  of  the  provisions  of  the 
state  and  federal  Constitutions  forbidding  the  passage  of  a  law  im- 
pairing the  obligation  of  a  contract.  (People  v.  Banning  Co.,  166 
Cal.  635,  138  Pac.  101.) 

The  right  to  practice  law  is  not  a  contract.  (Cohen  v.  Wright,  22 
Cal.  293.) 

An  act  authorizing  the  contractor  to  sue  for  a  street  assessment  is 
a  contract.     (Creighton  v.  Pragg,  21  Cal.  115.) 

The  remedy,  so  far  as  it  affects  substantial  rights,  is  included  in 
the  term  "obligation  of  contracts."  (Welsh  v.  Cross,  146  Cal.  621,  106 
Am.  St.  Kep.  63,  2  Ann.  Cas.  796,  81  Pac.  229.) 

A  law  giving  a  new  remedy  to  determine  whether  land  is  suitable 
for  cultivation  does  not  impair  the  obligation  of  ths  contract  of  pur- 
chase.    (Boggs  V.  Ganeard,  148  Cal.  711,  84  Pac.  195.) 

Judicial  decisions. — The  decisions  of  state  courts  in  regard  to  gen- 
eral rules  of  law,  although  they  may  affect  contract  rights,  are  not 
subject  to  the  rule  laid  down  by  the  federal  courts  that  a  judicial 
construction  of  a  statute,  so  far  as  contract  rights  acquired  under  it 
are  concerned',  becomes  a  part  of  the  statute,  and  that  a  change  in 
such  construction  has  the  same  effect  on  contracts  as  a  legislative 
amendment.      (Alferitz  v.  Borgwardt,  126  Cal.  201,  58  Pac.  460.) 

The  decision  holding  that  a  chattel  mortgage  vests  the  title  in  the 
m.ortgagee  was  not  a  judicial  construction  of  section  1888  of  the  Civil 
Code,  which  was  overlooked  by  the  court,  and  does  not  fall  within 
the  rule  of  the  federal  courts  that  contract  rights  acquired  under  a 
judicial  construction  of  a  statute  by  a  state  court  will  be  governed 
thereby,  and  cannot  be  affected  by  a  subsequent  change  in  such  con- 
struction.    (Alferitz  v.  Borgwardt,  126  Cal.  201,  58  Pac.  460.) 

Decisions  declaring  that  a  conveyance  absolute  in  form,  but  in- 
tended as  security,  did  not  pass  the  legal  title,  cannot  be  considered 
as  forming  part  of  a  conveyance   executed  after  such  decisions  and 


Art.  I,  §  16  CONSTITUTION  OF  1879,  176 

before  they  were  overruled.     (Allen  v.  Allen,  95  Cal.  184,  16  L.  E.  A. 
'546,  30  Pac.  213.) 

Impairment  of  obligation  of  contracts  by  judicial  decision.  See 
notes,  4  Ann.  Cas.  93;  9  Ann.  Cas.  1121;  6  R.  C.  L.,  §324, 
p.  332. 

Impairing  the  obligation. — Impairing  the  obligation  of  other  things 
than  contracts  is  not  prohibited.  (Robinson  v.  Magee,  9  Cal.  81,  70 
Am.  Dec.  638.) 

A  valid  contract  cannot  be  abrogated  by  the  adoption  of  a  new- 
Constitution,  any  more  than  it  can  be  by  the  enactment  of  a  law  by 
the  legislature.     (Ede  v.  Knight,  93  Cal.  159,  28  Pac.  860.) 

An  act  destroying  the  legal  remedy  upon  a  contract  impairs  the  ob- 
ligation of  the  contract.  (Bates  v.  Gregory,  89  Cal.  387,  26  Pac.  891; 
Robinson  v.  Magee,  9  Cal.  81,  70  Am.  Dec.  638;  Creighton  v.  Pragg, 
21  Cal.  115;  People  v.  Hays,  4  Cal.  127.) 

The  legislature  may  alter  or  change  the  remedy,  provided  the  right 
is  not  materially  affected;  but  whenever  the  remedy  is  so  far  altered 
as  to  impair,  destroy,  change,  or  render  the  right  scarcely  worth  pur- 
suing, the  obligation  of  the  contract  upon  which  the  right  is  founded 
is  impaired.      (Smith  v.  Morse,  2  Cal.  524.) 

The  Constitution  does  not  inhibit  all  legislation  in  respect  to  con- 
tracts, but  only  forbids  the  impairing  of  their  obligation.  (Thornton 
v.  Hooper,  14  Cal.  9.) 

The  legislature  cannot,  after  the  contract  is  made,  change  its  terms, 
or  authorize  a  performance  different  from  that  prescribed  in  the  con- 
tract.    (McGee  v.  San  Jose,  68  Cal.  91,  8  Pac.  641.) 

Contracts  with  state,  counties  and  cities. — A  state  can  no  more  im- 
pair the  obligation  of  a  contract  made  by  it  with  an  individual  than 
a  contract  between  two  citizens.      (Floyd  v.  Blanding,  54  Cal.  41.) 

An  act  extinguishing  the  debts  of  a  city  is  void.  (Smith  v.  Morse, 
2  Cal.  524.) 

An  act  ratifying  an  ordinance  of  the  city  and  county  of  San  Fran- 
cisco transferring  all  of  the  property  of  the  city  to  the  "Commission- 
ers of  the  Sinking  Fund,"  and  thus  placing  it  beyond  the  reach  of  the 
city's  creditors,  is  void.      (Smith  v.  Morse,  2  Cal.  524.) 

When  bonds  of  a  city  are  issued  and  accepted  by  the  creditors  of 
the  city  under  a  statute  requiring  an  annual  levy  of  taxes  in  pay- 
ment thereof,  the  contract  is  made  as  solemn  and  binding  and  as 
much  beyond  subsequent  legislation  as  it  would  have  been  if  made 
between  private  persons.  (Meyer  v.  Brown,  65  Cal.  583,  26  Pac.  281; 
Bates  V.  Porter,-  74  Cal.  224,  15  Pac.  732.) 

Where  creditors  of  a  city,  under  the  act  of  1851,  creating  the  board 
of  fund  commissioners  of  San  Francisco,  surrendered  the  old  indebt- 
edness and  took  a  new  security,  bearing  a  different  rate  of  interest, 
the  act  entered  into  the  contract,  and  cannot  be  amended  so  as  to 
impair  or  destroy  the  rights  of  the  parties  under  the  contract. 
(People  V.  Woods,  7  Cal.  579;  People  v.  Bond,  10  Cal.  563.) 

The  act  to  authorize  the  funding  of  the  floating  debt  of  San  Fran- 
cisco is  a  contract,  and  its  obligations  cannot  be  impaired  by  amend- 
ments, but  new  provisions  may  be  added,  provided  the  rights  of  credi- 


177  DECLARATION   OF   RIGHTS.  Art.  I,  §  16 

tors  are  net  injuriously  affected.  (Thornton  v.  Hooper,  14  Cal.  9; 
Babcock  v.  Middleton,  20  Cal.  643.) 

As  a  general  jnle,  a  provision,  whether  made  by  a  state  or  a  cor- 
poration, to  meet  its  debts  or  engagements,  may  be  regarded  as  only 
a  means  of  executing  its  own  policy  or  transacting  its  own  business, 
and  maj'  be  altered  or  repealed  at  pleasure.  (San  Francisco  v.  Beide- 
man,  17  Cal.  443.) 

An  act  providing  for  the  payment  of  the  debts  of  a  county  by  re- 
funding is  not  void,  as  the  creditor  had  no  remedy  against  the  county 
which  could  be  impaired.  (Hunsaker  v.  Borden,  5  Cal.  288,  63  Am. 
Dec.  130.) 

The  legislature  cannot  divest  the  right  of  a  party  to  have  a  county 
warrant  paid  when  that  right  is  complete,  vested  and  determined. 
(Laforge  v.  Magee,  6  Cal.  650.) 

A  statute  requiring  all  persons  holding  certain  county  warrants  to 
present  them  for  registry  before  a  certain  date  or  be  forever  barred 
from  enforcing  the  payment  thereof  adds  a  new  condition  to  the  con- 
tract, and  therefore  impairs  its  obligation.  (Eobinson  v.  Magee,  9 
Cal.  81,  70  Am.  Dec.  638.) 

This  provision  relates  solely  to  contracts  between  individuals  and 
not  to  contracts  between  individuals  and  the  state,  because  the  state 
cannot  be  sued.  (Myers  v.  English,  9  Cal.  341.  But  see  23  Am.  & 
Eng.  Enc}'.  of  Law,  1st  ed.,  79.) 

The  provisions  of  the  act  for  the  organization  of  irrigation  dis- 
tricts as  to  the  extent  of  the  liability  of  the  land  created  a  contract 
between  the  land  owners  and  the  state,  which  could  not  be  impaired 
by  future  legislation.  (Merchants'  Nat.  Bank  v.  Escondido  Irr.  Dist., 
144  Cal.  329,  77  Pac.  937.) 

An  act  authorizing  a  county  to  fund  its  outstanding  warrants, 
which  were  not  to  draw  interest,  and  to  make  the  bonds  given  in  ex- 
change therefor  bear  interest,  is  not  unconstitutional.  (Chapman  v. 
Morris,  28  Cal.  393.) 

A  law  for  the  funding  of  the  debts  of  a  county  is  valid,  for  the 
county  cannot  be  sued  except  by  consent  of  the  state,  and  that  con- 
sent can  be  granted  upon  any  terms  the  state  sees  fit  to  impose. 
(Sharp  V.  Contra  Costa  Co.,  34  Cal.  284.) 

But  while  the  state  and  its  legal  subdivisions  cannot  be  compelled 
to  perform  their  contracts,  the  state  cannot  annul  them.  Therefore, 
an  act  creating  funding  commissioners  and  providing  that  no  claim 
against  the  county  shall  be  valid  unless  presented  to  and  allowed  by 
the  commissioners  is  void.     (Rose  v.  Estudillo,  39  Cal.  270.) 

The  legislature  cannot  require  the  creditors  of  a  eo-unty  to  surren- 
der their  evidences  of  indebtedness,  and  acecpt  new  ones  in  different 
terms,  but  it  may  refuse  to  provide  funds  to  pay  any  portion  of  the 
old  indebtedness,  unless  the  creditor  will  accept  such  new  indebted- 
ness.    (People  v.  Morse,  43  Cal.  534.) 

A  municipality  has  no  power  to  contract  away  the  right  of  the 
state  to  supervise  and  regulate  a  public  utility,  unless  the  state  has 
expressly  given  it  this  right,  and  the  state,  acting  through  the  Rail- 
road Commission,  may  constitutionally  regulate  a  public  utility,  even 
though  a  contract  as  to  rates  and  service  is  in  force  between  the 
Constitution — 12 


Art.  I,  §  16  CONSTITUTION  OF  1879.  178 

utility  and  a  municipality.  (Ukiah  v.  The  Snow  Mountain  Water  & 
Power  Co.,  4  C.  E.  C.  293,  .309.) 

Retrospective  statutes. — It  is  to  be  presumed  that  no  statute  is  to 
operate  retrospectively,  unless  the  contrary  clearly  appears.  (Pignaz 
V.  Burnett,  119  Cal.  157,  51  Pac.  48.) 

A  retrospective  statute  is  void  only  when  it  deprives  a  person  of 
some  vested  right,  secured  either  by  some  constitutional  guaranty,  or 
protected  by  the  principles  of  natural  justice.  (Galland  v.  Lewis,  26 
Cal.  46.) 

A  law  making  certain  transfers  presumptively  fraudulent  cannot 
be  given  a  retrospective  effect.  (Cook  v.  Cockins,  117  Cal.  140,  48 
Pae.  1025.) 

Remedial  statutes. — Eemedial  statutes,  which  are  retrospective,  but 
do  not  impair  contracts  or  disturb  absolute  vested  rights,  and  only  go 
to  confirm  rights  already  existing,  are  valid.  (Dentzel  v.  Waldie,  30 
Cal.  138.) 

The  legislature  may  legalize  defective  and  invalid  assessments  of 
taxes.     (People  v.  Holladay,  25  Cal.  300.) 

Particular  statutes. — Where,  upon  the  death  of  the  ancestor,  the 
heirs  become  at  once  vested  with  the  full  title  to  his  real  estate,  sub- 
ject only  to  certain  liens  or  burdens,  the  legislature  cannot,  by  a  sub- 
sequent enactment,  interfere  with  such  vested  right  by  authorizing 
a  sale  of  the  property  by  an  executor  or  administrator  solely  for  the 
benefit  of  the  heirs.  (Estate  of  Packer,  125  Cal.  396,  73  Am,  St.  Rep. 
58,  58  Pac.  59.) 

A  law  reducing  the  percentage  payable  upon  redemption,  passed 
after  the  sale,  is  void.  (Thresher  v.  Atchison,  117  Cal.  73,  59  Am.  St. 
Rep.  159,  48  Pac.  1020.) 

A  law  imposing  more  onerous  conditions  upon  the  right  to  redeem 
from  a  tax  sale  than  those  which  existed  when  the  sale  was  made  is 
void.  (Teralta  Land  etc.  Co.  v.  Shaffer,  116  Cal.  518,  58  Am.  St.  Rep. 
194,  48  Pac.  613.) 

The  legislature  may  reduce  the  time  within  which  a  deed  must  be 
made  by  a  tax  collector,  provided  a  reasonable  time  is  allowed  in 
which  to  obtain  the  deed.  (Tuttle  v.  Block,  104  Cal.  443,  38  Pac. 
10-9.) 

To  extend  the  time  for  redemption  is  to  alter  the  substance  of  the 
contract,  (Rollins  v.  Wri;  ht,  93  Cal.  395,  29  Pac.  58;  Barnitz  v.  Bev- 
erly, 163  U.  S.  118,  41  L.'  Ed.  93,  16  Sup.  Ct.  Rep.  1042;  Haynes  v. 
Tredway,  133  Cal.  400,  65  Pac.  892;  Malone  v.  Roy,  134  Cal.  344,  66 
Pac.  313.) 

A  statute  passed  after  the  making  of  a  contract,  giving  a  right  of 
redemption  from  an  execution  sale,  is  unconstitutional.  (People  v. 
Hays,  4  Cal.  127.) 

A  law  extending  the  time  of  redemption  passed  after  judgment, 
but  before  levy  or  sale,  cannot  apply  to  a  redemption  from  such  sale. 
(Welsh  V.  Cross,  146  Cal.  621,  106  Am.  St.  Rep.  63,  2  Ann.  Cas.  796, 
81  Pac.  229,  overruling  Tuolumne  Redemption  Co.  v.  Sedgwick,  15 
Cal.  515.) 

A  state  cannot  enact  an  insolvent  law  discharging  the  obligations 
of  contracts  made  out  of  the  state.  (Lowenberg  v.  Levine,  93  Cal. 
215,  16  L.  R.  A.  159,  28  Pac.  941.) 


179  DECLARATION    OF   RIGHTS.  Art.  I,  §  It) 

A  law  which  shortens  the  time  within  which  to  file  a  notice  of  a 
mechanic's  lien  may  constitutionally  be  made  to  apply  to  pending 
cases  of  uncompleted  buildings;  provided,  an  adequate  and  availing 
remedy  be  left  to  enforce  the  lien.  (Kerckhoff-Cuzner  Mill  etc.  Co. 
V.  Olmstead,  85  Cal.  80,  24  Pac.  648.) 

A  law  providing  for  the  discharge  of  a  debt  contracted  before  its 
adoption  is  valid.  (Porter  v.  Imus,  79  Cal.  183,  21  Pac.  729.  But  see 
16  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  640.) 

The  construction  of  section  4,  artice  XIII,  of  the  Constitution,  so 
that  it  makes  the  mortgagee  of  a  mortgage  executed  prior  to  the 
adoption  of  the  Constitution  primarily  liable  for  the  taxes,  where  the 
mortgage  makes  no  provision  on  the  subject,  does  not  impair  the  obli- 
gation of  the  contract.  (Hay  v.  Hill,  65  Cal.  383,  4  Pac.  378;  McCop- 
pin  v.  McCartney,  60  Cal.  367.) 

To  give  section  5,  article  XIII,  of  the  Constitution  a  retrospective 
operation,  would  be  impairing  the  obligation  of  contracts.  (Beck- 
man  v.  Skaggs,  59  Cal.  541.) 

The  act,  commonly  known  as  the  Water  Lot  Act,  providing  for  the 
disposition  of  submerged  lands  and  fixing  a  line  which  is  to  "remain 
a  permanent  waterfront,"  does  not  amount  to  a  contract  with  the 
grantees  of  the  land  that  the  waterfront  so  fixed  shall  not  be  ex- 
tended or  otherwise  changed.     (Floyd  v.  Blanding,  54  Cal.  41.) 

An  act  exempting  property  from  execution  after  a  debt  is  con- 
tracted is  void.     (Smith  v.  Morse,  2  Cal.  524.) 

A  law  changing  the  time  within  which  an  action  must  be  brought 
does  not  impair  any  vested  right,  for  it  only  affects  the  remedy,  and 
not  the  right.     (Billings  v.  Hall,  7  Cal.  1.) 

An  act  requiring  a  person  to  pay  for  improvements  put  upon  his 
land  by  a  trespasser  against  his  will  does  not  impair  the  obligation 
of  any  contract,  as  the  individuals  forming  a  government  are  not 
contractors  with  such  government,  within  the  meaning  of  this  sec- 
tion.    (Billings  V.  Hall,  7  Cal.  1.) 

An  act  making  void  prior  deeds,  unless  recorded  in  accordance 
therewith,  does  not  impair  vested  rights.  (Stafford  v.  Lick,  7  Cal. 
479.) 

After  having  made  an  appropriation  in  view  of  a  contemplated  con- 
tract to  be  based  thereon,  and  such  contract  is  made,  and  funds  to 
meet  the  appropriation  are  received  into  the  treasury,  the  legislature 
cannot  deprive  the  party  with  whom  the  contract  is  made  of  such 
funds  by  repealing  the  appropriation.     (People  v.  Brooks,  16  Cal.  11.) 

An  act  making  the  assessment  prima  facie  proof  of  the  tax,  and 
prohibiting  the  defendant  from  setting  up  any  informality  in  the 
levy  or  assessment  of  the  tax  is  valid,  since  it  goes  merely  to  the 
remedy.     (People  v.  Seymour,  16  Cal.  332,  76  Am.  Dec.  521.) 

An  act  requiring  litigants  to  take  the  oath  of  allegiance  is  valid. 
(Cohen  v.  Wright,  22  Cal.  293.) 

The  "Specific  Contract  Act"  is  not  in  violation  of  this  section. 
(Ualland  v.  Lewis,  26  Cal.  46;  Otis  v.  Haseltine,  27  Cal.  80.) 

An  act  validating  powers  of  attorney  theretofore  made  by  married 
women  for  the  sale  of  their  separate  property,  and  conve^'ances  made 
by  attorneys  in  fact  thereunder,  is  valid.  (Dentzel  v.  Waldie,  30 
Cal.  138.) 


Art.  I,  §  16  CONSTITUTION  OF  1879.  180 

The  legislature  may  impose  on  debtors  the  obligation  to  pay  inter- 
est after  the  passage  of  the  act  on  debts  already  due.  (Dunne  v. 
Mastick,  50  Cal.  244.) 

An  ordinance  providing  that  no  liquor  license  shall  be  granted  to 
any  person  who  has  conducted  the  business  of  selling  liquors  in  any 
place  where  females  are  employed  is  valid.  (Foster  v.  Board  of 
Police  Commrs.,  102  Cal.  483,  41  Am.  St.  Rep.  194,  37  Pac.  763.) 

The  amendment  of  March  1,  1905,  to  section  3897  of  the  Political 
Code,  dealing  with  the  sale  of  property  purchased  by  the  state,  is  not 
open  to  constitutional  objection,  either  on  account  of  retroactive  char- 
acter or  as  impairing  rights.  (Buck  v.  Canty,  162  Cal.  226,  121  Pac. 
924.) 

The  statute  of  June  3,  1906,  extending  the  time  of  performance  of 
certain  acts  to  a  time  beyond  the  period  of  time  fixed  therefor,  can- 
not have  the  effect  of  extending  the  period  of  redemption  after  judg- 
ment and  execution  sale.  (Summers  v.  Hammell,  17  Cal.  App.  493, 
120  Pac.  63.) 

The  provision  of  section  11  of  the  act  of  1909  that  proceedings  for 
a  street  improvement  pending  at  the  time  of  the  passage  of  that  act 
shall  be  continued  under  the  provisions  of  that  act  is  not  unconstitu- 
tional because  of  the  limitation  of  the  right  of  abandonment  under 
that  act.  (Title  Insurance  &  Trust  Co.  v.  Lusk,  15  Cal.  App.  358,  115 
Pac.  53.) 

When   statutes   deemed   to   impair   contracts.     See    note,    79  Am. 

Dec.  495. 
Statutes    making    pre-existing    contracts    illegal.     See    note,    120 

Am.  St.  Rep.  468. 
Impairing  obligation  of  contracts  by  franchise  tax.     See  note,  131 

Am.  St.  Rep.  878. 
Impairing  obligation  of  contracts  by  altering  or  repealing  corpo- 
rate  charter.     See  note,   62  Am.   St.  Rep.  165. 
Prohibiting  revival  of  judgment  as  impairment  of  obligation  of 

contracts.     See  note,  3  Ann.  Cas.  1148. 
Municipal  ordinance  as  within  purview  of  clause  in  federal  Con- 
stitution  against   impairment   of   obligation   of   contracts.     See 
note,  12  Ann.  Cas.  503. 
Impairment  of  ordinance  granting  privilege  as  impairment  of  con- 
tract obligation.     See  note,  3  Ann.  Cas.  88. 
Impairment  of  obligation.     See   6  R.   C.  L.,   §§  312-363,  pp.  323- 

369, 
Statute  extending  exemption  from  execution  as  impairing  obliga- 
tion of  contract.     See  note,  Ann.  Cas.  1912B,  259. 

EX  POST  FACTO  LAWS. — A  law  changing  the  forms  of  procedure 
by  which  persons  accused  of  crime  are  to  be  tried  for  offenses  com- 
mitted before  the  law  was  passed  is  not  an  ex  post  facto  law.  (Peo- 
ple  V.   Mortimer,  46  Cal.   114.) 

A  crime  committed  before  the  adoption  of  the  Constitution  of  1879 
may,  after  such  adoption,  be  prosecuted  by  information.  (People  v. 
Campbell,  59  Cal.  243,  43  Am.  Rep.  257.) 


181  DECLARATION    OF    RIGHTS.  Art.  I,  §  17 

The  section  of  the  Penal  Code  which  provides  that  one  who  has 
been  convicted  of  petit  larceny,  who  shall  again  commit  the  same 
offense,  is  to  be  deemed  guilty  of  a  felony,  is  not  ex  post  facto,  when 
applied  to  one  who  committed  the  first  offense  prior  to  the  taking 
effect  of  the  provision.      (Ex  parte  Gutierrez,  45  Cal.  429.) 

Where,  after  the  commission  of  a  crime,  the  crime  is  reduced  by 
statute  from  a  felony  to  a  misdemeanor,  such  statute  works  a  repeal 
of  the  former  law,  and  such  crime  cannot  be  punished  under  either 
law.     (People  v.  Tisdale,  57  Cal.  104.) 

What  are  ex  post  facto  laws  and  when  valid.     See  note,  37  Am. 
St.  Eep.  582. 

Laws   changing  punishment  as  ex  post  facto.     See   note,  3   Ann. 
Cas.  77. 

Constitutional  provision  against  ex  post  facto  laws  as  applicable 
to  judicial  decisions.     See  note,  Ann.  Cas.  1914C,  228. 

Ex  post  facto  and  retrospective  laws.     See  6  K,  C.  L.,  §§  276-291, 
pp.  290-305. 

BILLS  OF  ATTAINDER.— A  resolution  expelling  a  member  of  the 
legislature  is  not  a  bill  of  attainder.  (French  v.  Senate,  146  Cal.  604, 
2  Ann.  Cas.  756,  69  L.  R.  A.  556,  80  Pac.  1031.) 

Rights  of  foreign  residents. 

Sec.  17.  Foreigners  of  the  white  race,  or  of  African  de- 
scent, eligible  to  become  citizens  of  the  United  States  under 
the  naturalization  laws  thereof,  while  bona  fide  residents  of 
this  state,  shall  have  the  same  rights  in  respect  to  the  acqui- 
sition, possession,  enjoyment,  transmission,  and  inheritance 
of  all  property,  other  than  real  estate,  as  native-born  citi- 
zens; provided,  that  such  aliens  owning  real  estate  at  the 
time  of  the  adoption  of  this  amendment  may  remain  such 
owners ;  and  provided  further,  that  the  legislature  may,  by 
statute,  provide  for  the  disposition  of  real  estate  which  shall 
hereafter  be  acquired  by  such  aliens  by  descent  or  devise. 
(Amendment  adopted  November  6,  1894.) 

[ORIGINAL  SECTION.] 

Sec.  17.  Foreigners  of  the  white  race  or  of  African  descent,  eli- 
gible to  become  citizens  of  the  United  States  under  the  natural- 
ization laws  thereof,  while  bona  fide  residents  of  this  state,  shall 
have  the  same  rights  in  respect  to  the  acquisition,  possession, 
enjoyment,  transmission,  and  inheritance  of  property  as  native- 
born  citizens. 

ALIENS. — An  alien  is  not  eligible  to  an  office  in  this  state.  (Wal- 
thcr  V.  Kabolt,  30  Cal.  185.) 

By  the  common  law,  aliens  could  not  acquire  property  by  descent 
or   other   operation   of   law;   and   this   section  only   removes   this   dis- 


Art.  I,  §§  18, 19        CONSTITUTION  OF  1879.  182 

ability  from  those  who  are  bona  fide  residents  within  the  state.     (Nor- 
ris  V.  Hoyt,  18  Cal.  217.) 

A  nonresident  alien  may  take  and  hold  property  acquired  by  pur- 
chase until  office  found.     (Norris  v.  Hoyt,  18  Cal.  217.) 

An  act  permitting  nonresident  aliens  to  inherit  real  and  personal 
estate  is  valid.  (State  v.  Rogers,  13  Cal.  159;  Billings  v.  Hauver,  6-5 
Cal.  593,  4  Pac.  639;  Lyons  v.  State,  67  Cal.  380,  7  Pac.  763.) 

This  provision  by  implication  excludes  nonresident  aliens  from  the 
rights  mentioned  in  this  section.     (Siemssen  v.  Bofer,  6  Cal.  250.) 

This  section  prohibits  the  legislature  from  depriving  resident  for- 
eigners of  any  of  the  rights  enjoyed  by  native-born  citizens  with 
respect  to  the  acquisition,  possession,  enjoyment,  transmission,  or  in- 
heritance of  property.     (State  v.  Smith,  70  Cal.  153,  12  Pac.  121.) 

A  provision  in  the  specifications  for  public  street  work  that  no 
unnaturalized  alien  should  be  employed  in  the  work,  except  with  the 
permission  of  the  highway  commission,  is  invalid.  (City  Street  Imp. 
Co.  v.  Kroh,  158  Cal.  308,  110  Pac.  933.) 

This  section  and  section  671  of  the  Civil  Code,  allowing  aliens  to 
take,  hold  and  dispose  of  property  in  this  state,  are  not  in  conflict 
with  article  I,  section  10  of  the  United  States  Constitution,  declaring 
that  "no  state  shall  enter  into  any  treaty,  alliance  or  confederation." 
(Blythe  v.  Hinckley,  180  U.  S.  333,  45  L.  Ed.  557,  21  Sup.  Ct.  Rep. 
390.) 

Power  of  aliens  to  hold  lands.     See  note,  14  Am.  Dec.  97. 
Rights  of  aliens  to  receive  or  transmit  inheritance.     See  note,  12 

Am.  St.  Rep.  93. 
Right   of   alien   to   act  as  executor   or   administrator.     See   notes 

3  Ann.  Cas.  988;  Ann.  Cas.  1912A,  747. 
Estoppel  of  grantor  in  deed  to  deny  title  of  alien  grantee  on 
ground  that  latter  cannot  hold  property.  See  note,  13  Ann. 
Cas.  532. 
Right  of  alien  with  respect  to  inheritance  of  real  property  as  af- 
fected by  treaty  with  foreign  country.  See  note,  Ann.  Cas. 
1912A,  1100. 

Slavery  prohibited. 

Sec.  18.  Neither  slavery  nor  involuntary  servitude,  un- 
less for  the  punishment  of  crime,  shall  ever  be  tolerated  in 
this  state. 

SLAVERY. — Performance  of  work  upon  an  assessment  for  repair 
of  roads  is  not  such  involuntary  servitude  as  is  contemplated  by  this 
provision.     (In  re  Dassler,  35  Kan.  678,  12  Pac.  130.) 

On  this  subject,  generally,  see  In  re  Turner,  1  Abb.  U.  S.  84,  Fed. 
Cas.  No.  14,247;  Clark's  Case,  1  Blackf.  (Ind.)  122,  12  Am.  Dec.  213; 
In  re  Sah  Quah,  31  Fed.  327;  U.  S.  Const.,  art.  XIII. 

Searches  and  seizures,  restriction  on. 

Sec.  19.  The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  effects,  against  unreasonable 


183  DECLARATION   OF   RIGHTS.  Art.  I,  §  20 

seizures  and  searches,  shall  not  be  violated ;  and  no  warrant 
shall  issue,  but  on  probable  cause,  supported  by  oath  or  af- 
firmation, particularly  describing  the  place  to  be  searched 
and  the  persons  and  things  to  be  seized. 

SEARCH-WARRANTS. — The  legislature  has  power  to  authorize 
the  issuance  of  a  warrant  to  search  the  person  of  an  individual  in  a 
proper  case.     (Collins  v.  Lean,  68  Cal.  284,  9  Pac.  173.) 

Sections  1458  to  1461  of  the  Code  of  Civil  Procedure  do  not  violate 
this  section.  (Levy  v.  Superior  Court,  105  Cal.  600,  29  L.  R.  A.  811, 
38  Pac.  965.) 

Under  this  section  no  person  can  be  forced  to  surrender  his  private 
books  and  papers  to  another  who  does  not  own  or  have  any  interest 
in  them,  except  upon  convincing  proof  that  they  contain  evidence 
which  materially  affects  the  rights  in  litigation  of  the  person  de- 
manding them.  (Kullman,  Salz  &  Co.  v.  Superior  Court,  15  Cal.  App. 
276,  114  Pac.  589;  Funkenstein  v.  Superior  Court,  23  Cal.  App.  663, 
139  Pac.  101.) 

History  and  purpose  of  search-warrants.     See  note,  40   Am.  Dec. 

666. 
Searches  and  seizures,  what   deemed  unreasonable.     See  note,   32 

Am.  St.  Rep.  643. 
Search  of  premises  of  private  persons.     See  note,  101  Am.  St.  Rep. 

328. 
Sufficiency  of  description  of  premises  in  search-warrant  or  affida- 
vit therefor.     See  note,  17  Ann.  Cas.  232-. 
Validity  of  statutes  authorizing  seizure  and   destruction  of  gam- 
bling apparatus.     See  notes,  2  Ann.  Cas.  936;  13  Ann.  Cas.  454. 

Treason  defined. 

Sec.  20.  Treason  against  the  state  shall  consist  only  in 
levying  war  against  it,  adhering  to  its  enemies,  or  giving 
them  aid  and  comfort.  No  person  shall  be  convicted  of 
treason  unless  on  the  evidence  of  two  witnesses  to  the  same 
overt  act,  or  confession  in  open  court. 

TREASON. — The  constitutional  definition  of  treason  in  the  United 
States  Constitution  cannot  be  restricted  or  extended  by  Congress. 
(United  States  v.  Greathouse,  4  Sawy.  457,  2  Abb.  U.  S.  364,  Fed.  Cas. 
No.  15,254;  United  States  v.  Hanway,  2  Wall.  Jr.  139,  Fed.  Cas.  No. 
15,299.) 

As  to  treason  against  a  state,  see  People  v.  Lynch,  11  Johns.  (N.  Y.) 
549;  Charge  to  Grand  Jury,  1  Story,  614,  Fed.  Cas.  No.  18,275. 

The  constitutional  requirement  of  two  witnesses,  etc.,  does  not 
apply  to  the  preliminary  examination  by  magistrate  or  grand  jury. 
(United  States  v.  Hanway,  2  Wall.  Jr.  i39,  Fed.  Cas.  No.  15,299.) 


Art.  I,  §  21  CONSTITUTION  OF  1879.  184 

Privileges  and  immunities  of  citizens. 

Sec.  21.  No  special  privileges  or  immunities  shall  ever 
be  granted  which  may  not  be  altered,  revoked,  or  repealed 
by  the  legislature ;  nor  shall  any  citizen,  or  class  of  citizens, 
be  granted  privileges  or  immunities  which,  upon  the  same 
terms,  shall  not  be  granted  to  all  citizens. 

EXCLUSIVE  PRIVILEGES.— Under  the  former  Constitution,  it 
wa.s  held  that  exclusive  privileges  and  franchises  might  be  conferred 
by  the  legislature  upon  persons  or  corporations.  (California  State 
Tel.  Co.  V.  Alta  Tel.  Co.,  22  Cal.  398.)  But  this  decision  was  over- 
ruled in  San  Francisco  v.  Spring  Valley  Waterworks,  48  Cal.  493,  517. 

The  legislature  may  deny  to  one  man  a  privilege  extended  to  an- 
other. The  Constitution  is  violated  only  when  a  privilege  extended 
to  one  is  denied  to  another  on  substantially  the  same  facts;  and 
whether  the  facts  of  a  particular  case  constitute  a  proper  exception 
to  the  general  law  is  for  the  legislature  to  determine.  (People  v. 
Twelfth  District  Court,  17  Cal.  547.) 

The  provision  of  the  state  dental  law  exempting  from  its  operation 
persons  practicing  before  its  passage  is  not  violative  of  this  provision. 
(Ex  parte  Whitley,  144  Cal.  167,  1  Ann.  Cas.  13,  77  Pac.  879.) 

An  ordinance  prohibiting  public  laundries  in  designated  parts  of 
a  city  is  not  in  violation  of  this  section.  (In  re  Hang  Kie,  69  Cal. 
149,  10  Pac.  327.) 

An  ordinance  levying  a  license  tax  upon  all  sheep  which  are  pas- 
tured in  the  county,  except  sheep  listed  as  taxable  property  in  the 
county,  and  upon  which  taxes  are  paid,  is  in  violation  of  this  section. 
(Lassen  Co.  v.  Cone,  72  Cal.  387,  14  Pac.  100.) 

But  an  ordinance  requiring  all  persons  engaged  in  the  business  of 
raising,  grazing,  herding,  or  pasturing  sheep  in  the  county  to  pay 
an  annual  license  of  fifty  dollars  for  every  thousand  sheep  is  not  in 
violation  of  this  provision.  (Ex  parte  Mirande,  73  Cal.  365,  14  Pac. 
888.) 

A  law  providing  a  special  method  of  assessment  and  collection  of 
taxes  against  railroads  situated  in  more  than  one  county  is  not  in 
violation  of  this  section.  (People  v.  Central  Pac.  R.  R.  Co.,  105  Cal. 
576,  38  Pac.  905;  overruling  People  v.  Central  Pac.  R.  R.  Co.,  83  Cal. 
393,  23  Pac.  303,  and  affirmed  in  Central  Pac.  R.  R.  Co.  v.  People,  162 
U.    S.  91,  40  L.  Ed.  903,  16  Sup.  Ct.  Rep.  776.) 

An  act  making  it  a  misdemeanor  to  keep  open  a  barber-shop  on 
Sundays  or  other  holidays  is  in  violation  of  this  section.  (Ex  parte 
Jentzsch,  112  Cal.  468,  32  L.  R.  A.  664,  44  Pac.  803.) 

The  Primary  Election  Law  of  1899,  which  prohibits  the  election  of 
delegates  to  a  convention  of  any  political  party  not  representing 
three  per  cent  of  the  votes  cast  at  the  previous  election,  is  void. 
(Britton  v.  Board  of  Election  Commrs.,  129  Cal.  337,  51  L.  R.  A.  115, 
61  Pac.  1115.     Per  Henshaw,  J.,  Van  Dyke,  J.,  and  McFarland,  J.) 

The  provision  of  the  County  Government  Act  that  no  supplies,  etc., 
shall  be  purchased  for  the  county  from  any  person  who  has  not  had 
a  business  in  the  county  for  a  year  prior  to  the  purchase  is  in  viola- 


185  DECLARATION    OF    RIGHTS.  Art.  I,  §  21 

tion  of  this  section.  (Van  Harlingen  v.  Doyle,  134  Cal.  53,  54  L.  R.  A. 
771,  66  Pac.  44.) 

The  act  regulating  the  practice  of  medicine  and  surgery  does  not 
violate  this  section.  (Ex  parte  Gerino,  143  Cal.  412,  66  L.  R.  A.  249, 
77  Fae.  166.) 

An  act  applying  uniformly  to  all  cities  of  a  particular  class  is  not 
in  violation  of  this  section.  (Ex  parte  Jackson,  143  Cal.  564,  77 
Pac.  457.) 

The  provision  of  section  1197  of  the  Political  Code,  forbidding  the 
name  of  a  nominee  to  be  placed  upon  the  ballot  more  than  once,  is 
in  violation  of  this  section.  (Murphy  v.  Curry,  137  Cal.  479,  59 
L.  R.  A.  97,  70  Pac.  461.) 

A  lavr  regulating  the  rate  of  interest  on  chattel  mortgages  on  cer- 
tain classes  of  property  is  in  violation  of  this  provision.  (Ex  parte 
Sohncke,  148  Cal.  262,  113  Am.  St.  Rep.  236,  7  Ann.  Cas.  475,  2 
L.  R.  A.  (N.  S.)  813,  82  Pac.  956.) 

The  act  in  regard  to  the  practice  of  architecture  is  not  unconsti- 
tutional because  it  discriminates  between  certified  architects  and  un- 
certified architects.     (Ex  parte  McManus,  151  Cal.  331,  90  Pac.  702.) 

An  ordinance  prohibiting  the  wholesale  liquor  business  within  a 
designated  area  in  a  municipality  is  not  unreasonably  or  unjustly 
discriminatory,  merely  because  saloons  and  restaurants  where  liquor 
is  sold  are  permitted  within  such  prohibited  zone.  (Grumbach  v. 
Lelande,  154  Cal.  679,  98  Pac.  1059.) 

An  act  regulating  the  hours  of  employment  in  underground  mines 
and  in  smelting  and  reduction  works  does  not  violate  this  section. 
(In  re  Martin,  157  Cal.  51,  26  L.  R.  A.  (N.  S.)  242,  106  Pac.  235.) 

A  law  prohibiting  waste  of  water  from  artesian  welts  is  not  uncon- 
stitutional because  not  made  applicable  to  surface  water  and  pumps. 
(Ex  parte  Elam,  6  Cal.  App.  233,  91  Pac.  811.) 

The  right  or  privilege  granted  by  the  act  of  1907,  providing  for  the 
change  of  the  boundary  line  between  Fresno  and  Kings  county,  to 
electors  who  have  resided  for  ninety  days  preceding  the  election  in 
the  territory  to  be  transferred  to  Kings  county,  which  is  not  granted 
to  other  electors  of  that  territory  or  to  other  electors  of  Fresno 
county,  is  not  such  a  privilege  as  is  forbidden  by  this  section  of  the 
Constitution.     (Wheeler  v.  Herbert,  152  Cal.  224,  92  Pac.  353.) 

Under  this  section  the  amendment  of  November  23,  1907,  to  section 
135  of  the  Code  of  Civil  Procedure  providing  for  the  transaction  of 
judicial  business,  except  in  certain  cases,  on  special  holidays,  is  un- 
constitutional in  that  it  creates  a  class  of  litigants,  without  any 
rational  or  constitutional  distinction  to  justify  the  classification. 
(Diopenbroek  v.  Superior  Court,  153  Cal.  597,  95  Pac.  1121.) 

The  Insanity  Act  of  1897,  providing  for  the  recovery  from  the  es- 
tates of  insane  persons  the  cost  of  their  care  and  maintenance,  is 
valid.  (Napa  State  Hospital  v.  Dasso,  153  Cal.  698,  15  Ann.  Cas.  910, 
18  L.  R.  A.  (N.  S.)  643,  96  Pac.  355.) 

An  act  providing  for  the  payment  by  the  state,  county  or  city  of 
the  premium  on  official  bonds  of  all  state,  county  or  city  officers  (ex- 
cept notaries  public)  when  given  by  surety  companies  is  not  in  viola- 
tion of  this  section.  (County  of  San  Luis  Obispo  v.  Murphy,  162  Cal. 
588,  Ann.  Cas.  1913D,  712,  123  Pac.  808.) 


Art.  I,  §  22  CONSTITUTION  OF  1879.  18G 

An  act  forbidding  the  employment  of  women  for  more  than  eight 
hours  a  day  in  certain  places  is  not  in  violation  of  this  section. 
(Matter  of  Application  of  Miller,  162  Cal.  687,  124  Pac.  427;  affirmed 
in  Miller  v.  Wilson,  236  U.  S.  373,  59  L.  Ed.  628,  35  Sup.  Ct.  Rep.  342.) 

The  Employers'  Liability  Act,  giving  a  right  of  action  for  damages 
to  the  widow,  children,  dependent  parents,  and  dependent  brothers 
and  sisters  of  an  employee  killed  by  a  fellow-servant's  negligence, 
and  not  granting  such  a  right  to  the  husband,  nephews  and  nieces  or 
other  collateral  heirs  of  the  person  so  killed,  is  not  in  violation  of 
this  section.  (Pritchard  v.  Whitney  Estate  Co.,  164  Cal.  564,  129 
Pac.  989.) 

The  amendment  of  1907  to  section  1970  of  the  Civil  Code  extending 
the  liability  of  an  employer,  for  an  injury  resulting  from  the  wrong- 
ful act  or  negligence  of  a  coemployee  engaged  in  another  department 
of  labor  from  that  of  the  employee  injured,  or  employed  upon  a 
machine,  railroad  train,  switch-signal  point,  locomotive  engine,  or 
other  appliance  than  that  upon  which  the  employee  injured  is  em- 
ployed is  not  in  violation  of  this  section.  (Patton  v.  Los  Angeles 
Pacific  Co.,  18  Cal.  App.  522,  123  Pac.  613.) 

The  Tenement  House  Act  regulating  the  construction  of  buildings 
intended  for  human  habitation  and  providing  that  such  buildings 
shall  not  be  occupied  until  the  issuance  of  certain  certificates  by  the 
health  and  building  departments  is  not  in  violation  of  this  section. 
(Matter  of  Stoltenberg,  21  Cal.  App.  722,  132  Pac.  841.) 

The  act  of  1909  regulating  loan  brokers  and  limiting  rates  of  inter- 
est does  not  violate  this  section.  (Eaker  v.  Bryant,  24  Cal.  App,  87, 
140  Pac.  310.)  . 

The  provision  of  section  2289  of  the  Political  Code  that  no  child 
whose  parents  have  not  resided  in  this  state  for  at  least  three  years 
prior  to  the  application  for  aid  or  whose  parents  have  not  become 
citizens  of  this  state  shall  be  deemed  a  minor  orphan,  half-orphan  or 
abandoned  child.  (Sacramento  O.  etc.  Home  v.  Chambers,  25  Cal. 
App.  536,  144  Pac.  317.) 

Constitutionality   of  statutes   granting  exclusive   rights   or  privi- 
leges.    See  note,  1  Ann.  Cas.  847. 
Special  privileges.     See  6  R.  C.  L.,  §§  400-404,  pp.  405-408. 

Provisions  of  Constitution  construed. 

Sec.  22.  The  provisions  of  this  Constitution  are  manda- 
tory and  prohibitory,  unless  by  express  words  they  are  de- 
clared to  be  otherwise. 

MANDATORY  AND  PROHIBITORY.— As  to  the  meaning  of  this 
provision,  see  Matter  of  Maguire,  57  Cal.  604,  40  Am.  Rep.  125. 

iSotwithstanding  this  section,  where  a  provision  of  the  Constitution 
is  expressly  made  permissive,  as  by  the  use  of  the  word  "may,"  it  will 
not  be  deemed  mandatory.  (Fresno  Nat.  Bank  v.  Superior  Court,  83 
Cal.  491,  24  Pac.  157.) 

Section  5,  article  XI,  of  the  Constitution,  is  mandatory.  (Knight  v. 
Martin,  128  Cal.  245,  60  Pac.  849;  Dwyer  v.  Parker,  115  Cal.  544,  47 
Pac.  372.) 


187  DECLARATION  OF  RIGHTS.  Art.  I,  §§  23,  24 

Section  19,  article  XI,  of  the  Ccnstitution,  is  mandatory.  (McDon- 
ald V.  Patterson,  54  Cal.  245;  Pereria  v.  Wallace,  129  Cal.  397,  62  Pac. 
61.) 

Under  this  provision  it  is  held  that  the  provision  of  section  11, 
article  XII,  requiring  sixty  days'  notice  of  a  meeting  of  stockholders 
to  increase  capital  stock,  is  mandatory.  (Navajo  Mining  etc.  Co.  v. 
Curry,  147  Cal.  581,  109  Am.  St.  Rep.  176,  82  Pac.  247.) 

The  Constitution  provides  simply  a  limitation  upon  the  power  of  the 
legislature,  which,  otherwise,  is  supreme.  (People  v.  Nye,  9  Cal. 
App.  148,  98  Pac.  241.) 

The  provision  of  section  1  of  article  XVII  does  not  restrict  the 
power  of  the  legislature  to  give  homesteads  to  the  heads  of  families 
only.     (Hohn  v.  Pauly,  11  Cal.  App.  724,  106  Pac.  266.) 

Where  the  Constitution  makes  no  provision  as  to  what  shall  consti- 
tute a  vacancy  in  an  office,  the  legislature  may  specify  what  consti- 
tutes a  vacancy  and  provide  for  filling  the  same.  (People  v.  Nye,  9 
Cal.  App.  148,  98  Pac.  241.) 

The  provisions  of  the  Constitution  which  are  mandatory  and  pro- 
hibitory are  binding  upon  every  department  of  the  state  government, 
legislative,  executive,  and  judicial,  (People  v.  California  Fish  Co., 
166  Cal.  576,  138  Pac.  79.) 

The  declarations  of  this  Constitution  are  all  mandatory  and  pro- 
hibitory unless  the  contrary  is  expressly  declared.  (Cake  v.  City  of 
Los  Angeles,  164  Cal.  705,  130  Pac.  723.) 

This  section  refers  to  the  effect,  not  to  the  meaning,  of  the  consti- 
tutional provisions,  and  declares  that  they  are  imperative  and  para- 
mount, according  to  their  true  meaning,  ascertained  by  the  rules  of 
construction  otherwise  applicable  thereto.  (Clark  v.  Los  AngeleSj  160 
Cal.  30,  116  Pac.  722.) 

Rights  retained  by  the  people. 

Sec.  23.  This  enumeration  of  rights  shall  not  be  con- 
strued to  impair  or  deny  others  retained  by  the  people. 

IMPLIED  RIGHTS.— The  Primary  Election  Law  of  1899,  which 
allows  members  of  one  political  party  to  vote  for  delegates  to  the 
party  convention  of  another  party,  is  void.  (Britton  v.  Board  of 
Election  Commrs.,  129  Cal.  337,  51  L.  R.  A.  115,  61  Pac.  1115.) 

Property  qualification  not  required. 

Sec.  24.  No  property  qualification  shall  ever  be  required 
for  any  person  to  vote  or  hold  office. 

PROPERTY  QUAIilFICATION.— This  section  does  not  apply  to  a 
voter  in  a  reclamation  district.  (People  v.  Reclamation  Dist.  No.  551, 
117  Cal.  114,  48  Pac.  1016.) 

The  provision  of  the  act  creating  the  Sacramento  Drainage  District 
restricting  the  right  to  vote  for  drainage  commissioners  to  the  own- 
ers of  real  property  within  the  district  does  no  violence  to  the  con- 
stitutional  inhibition   against   requiring   a   property   qualification   for 


Art.  I,  §  25  CONSTITUTION  OF  18 19.  188 

voters.  (People  v.  Sacramento  Drainage  District,  155  Cal.  373,  103 
Fac.  207.) 

The  provisions  of  the  Primary  Election  Law  of  1909  requiring  the 
payment  of  fees  by  candidates  on  filing  their  nomination  papers  is 
not  the  exaction  of  a  property  qualification  to  vote  or  hold  office.  The 
exaction  of  such  fees  is  a  valid  exercise  of  the  power  of  the  legisla- 
ture, under  section  2%  of  article  II,  to  provide  reasonable  conditions 
for  the  exercise  of  the  rights  granted  by  the  act.  (Socialist  Party  v. 
Uhl,  155  Cal.  776,  103  Pac.  181.) 

This  section  does  not  apply  to  the  act  relating  to  permanent  road 
divisions,  which  restricts  the  right  to  sign  the  petition  for  the  forma- 
tion of  a  permanent  road  district  to  land  owners  residing  within  the 
district.  (Potter  v.  Santa  Barbara  County,  160  Cal.  349,  116  Pac, 
1101.) 


Right  to  fish  upon  public  lands. 

Sec.  25.  The  people  shall  have  the  right  to  fish  upon  and 
from  the  public  lands  of  the  state  and  in  the  waters  thereof, 
excepting  upon  lands  set  aside  for  fish  hatcheries,  and  no 
land  owned  by  the  state  shall  ever  be  sold  or  transferred 
Mdthout  reserving  in  the  people  the  absolute  right  to  fish 
thereupon;  and  no  law  shall  ever  be  passed  making  it  a 
crime  for  the  people  to  enter  upon  the  public  lands  within 
this  state  for  the  purpose  of  fishing  in  any  water  containing 
fish  that  have  been  planted  therein  by  the  state ;  provided, 
that  the  legislature  may  by  statute,  provide  for  the  season 
when  and  the  conditions  under  which  the  different  species 
of  fish  may  be  taken.  (New  section  added  by  amendment 
adopted  November  8,  1910.) 

RIGHT  TO  FISH. — The  act  of  the  legislature  imposing  a  license 
tax  of  ten  dollars  a  year  for  the  privilege  of  fishing  for  profit  in  the 
waters  of  the  state  is  valid,  and  does  not  violate  this  section.  (Mat- 
ter of  Application  of  Parra,  24  Cal.  App.  339,  141  Pac.  393.) 

The  principal  object  of  this  section  is  to  reserve  to  the  people  the 
right  to  fish  upon  the  public  lands  of  the  state  and  to  require  that 
grants  of  land  by  the  state  should  not  be  made  "without  reserving  to 
the  people  the  absolute  right  to  fish  thereupon."  (Matter  of  Appli- 
cation of  Parra,  24  Cal.  App.  339,  141  Pac.  393.) 

Power  of  states  to  regulate   taking  of  fish  in  tide  waters.     See 

note,  23  Am.  St.  Eep.  837. 
Eight  of  fishery.     See  note,  131  Am.  St.  Eep.  751. 
Power  of  state  to  grant  to  private  individual   exclusive  right   to 
Bhell-fish  within  waters  of  state.     See  note,  16  Ann.  Cas.   198. 


189  DECLARATION  OF  RIGHTS.  Art.  I,  §  26a 

Intoxicating-  liquor  amendment. 

Sec.  26a.  Should  an  amendment  to  the  Constitution  of 
the  state  of  California  by  adding  to  article  I  two  new  sec- 
tions to  be  numbered  respectively  section  26  and  section 
27,  as  proposed  by  initiative  petition  filed  with  and  certified 
to  the  secretary  of  state,  and  relating  to  intoxicating  liquors, 
be  enacted  at  the  general  election  held  on  Nov.  3,  1914,  then 
the  force  and  effect  of  said  section  26  shall  be  suspended 
until  Feb.  15,  1915,  at  which  time  it  shall  have  full  force  and 
effect  except  that,  as  to  the  manufacture  and  transportation 
of  intoxicating  liquors  for  delivery  at  points  outside  of  the 
state  of  California  only,  the  force  and  effect  thereof  shall 
be  suspended  until  Jan.  1,  1916,  at  which  time  such  manu- 
facture and  transportation  also  shall  wholly  cease  and  on 
and  after  said  date  said  section  26  shall  in  all  respects  have 
full  force  and  effect.  (Amendment  adopted  November  3, 
1914.) 

Note. — The  proposed  amendment  referred  to  in  this  amendment 
was  not  adopted,  so  that  this  section  never  became  operative,  although 
adopted. 


Art.  II,  §  1  CONSTITUTION  OF  1879.  190 

ARTICLE  II. 

RIGHT  OF  SUFFRAGE. 

§  1.  Who  are  and  who  are  not  electors. 

§  2.  Privileges  of  electors. 

§   2i.  Primary   elections. 

§  3.  Militia  duty,  privilege  of  electors. 

§  4.  Residence  of  voters,  gained  or  lost. 

§  5.  Election  by  ballot. 

§  6.  Voting  machines. 

Who  are  and  who  are  not  electors. 

Section  1.  Every  native  citizen  of  the  United  States, 
every  person  who  shall  have  acquired  the  rights  of  citizen- 
ship under  or  by  virtue  of  the  treaty  of  Queretaro,  and 
every  naturalized  citizen  thereof,  who  shall  have  become 
such  ninety  days  prior  to  any  election,  of  the  age  of  twenty- 
one  years,  who  shall  have  been  resident  of  the  state  one 
year  next  preceding  the  election,  and  of  the  county  in  which 
he  or  she  claims  his  or  her  vote  ninety  days,  and  in  the  elec- 
tion precinct  thirty  days,  shall  be  entitled  to  vote  at  all 
elections  which  are  now  or  may  hereafter  be  authorized  by 
law;  provided,  no  native  of  China,  no  idiot,  no  insane  per- 
son, no  person  convicted  of  any  infamous  crime,  no  person 
hereafter  convicted  of  the  embezzlement  or  misappropria- 
tion of  public  money,  and  no  person  who  shall  not  be  able 
to  read  the  Constitution  in  the  English  language  and  write 
his  or  her  name,  shall  ever  exercise  the  privileges  of  an  elec- 
tor in  this  state ;  provided,  that  the  provisions  of  this  amend- 
ment relative  to  an  educational  qualification  shall  not  apply 
to  any  person  prevented  by  a  physical  disability  from  com- 
plying with  its  requisitions,  nor  to  any  person  who  now  has 
the  right  to  vote,  nor  to  any  person  who  shall  be  sixty  years 
of  age  and  upwards  at  the  time  this  amendment  shall  take 
effect.     (Amendment  approved  October  10,  1911.) 

[AMENDMENT  OF  1894.] 
Section  1.  Every  native  male  citizen  of  the  United  States, 
every  male  person  who  shall  have  acquired  the  right  of  citizenship 
under  or  by  virtue  of  the  treaty  of  Queretaro,  and  every  male  nat- 
uralized citizen  thereof,  who  shall  have  become  such  ninety  days 
prior  to  any  election,  of  the  age  of  twenty-one  years,  who  shall 
have  been  resident  of  the  state  one  year  next  preceding  the  elec- 


191  BIGHT  OF  SUFFRAGE.  Art,  II,  §  1 

tion,  and  of  the  county  in  which  he  claims  his  vote  ninety  days, 
and  in  the  election  precinct  thirty  days,  shall  be  entitled  to  vote 
at  all  elections  which  are  now  or  may  hereafter  be  authorized  by 
law;  provided,  no  native  of  China,  no  idiot,  no  insane  person,  no 
person  convicted  of  any  infamous  crime,  no  person  hereafter  con- 
victed of  the  embezzlement  or  misappropriation  of  public  money, 
and  no  person  who  shall  not  be  able  to  read  the  Constitution  in 
the  English  language  and  write  his  name,  shall  ever  exercise  the 
privileges  of  an  elector  in  this  state;  provided,  that  the  provisions 
of  this  amendment  relative  to  an  educational  qualification  shall 
not  apply  to  any  person  prevented  by  a  physical  disability  from 
complying  with  its  requisitions,  nor  to  any  person  who  has  the 
right  to  vote,  nor  to  any  person  who  shall  be  sixty  years  of  age 
and  upwards  at  the  time  this  amendment  shall  take  effect. 
(Amendment  adopted  November  6,  1894.) 

[ORIGINAL  SECTION.] 
Section  1.  Every  native  male  citizen  of  the  United  States, 
every  male  person  who  shall  have  acquired  the  rights  of  citizen- 
ship under  or  by  virtue  of  the  treaty  of  Queretaro,  and  every  male 
naturalized  citizen  thereof,  who  shall  have  become  such  ninety 
days  prior  to  any  election,  of  the  age  of  twenty-one  years,  who 
shall  have  been  a  resident  of  the  state  one  year  next  preceding 
the  election,  and  of  the  county  in  which  he  claims  his  vote  ninety 
days,  and  in  the  election  precinct  thirty  days,  shall  be  entitled  to 
vote  at  all  elections  which  are  now  or  may  hereafter  be  authorized 
by  law;  provided,  no  native  of  China,  no  idiot,  insane  person,  or 
person  convicted  of  any  infamous  crime,  and  no  person  hereafter 
convicted  of  the  embezzlement  or  misappropriation  of  public 
money,  shall  ever  exercise  the  privileges  of  an  elector  in  this  state. 

RIGHT  OF  SUFFRAGE.— When  Congress  admitted  California  as  a 
state,  the  constituent  members  of  the  state,  in  their  aggregate  capa- 
city, became  vested  with  the  sovereign  powers  of  government  "accord- 
ing to  the  principles  of  the  Constitution,"  and  had  the  right  to  pre- 
scribe the  qualifications  of  electors.  (People  v.  De  la  Guerra,  40  Cal. 
311.) 

It  was  no  violation  of  the  ninth  article  of  the  treaty  of  Guadalupe 
Hidalgo  that  the  qualifications  of  electors,  as  prescribed  in  the  Con- 
stitution of  California,  were  such  as  to  exclude  some  of  the  inhabi- 
tants from  certain  political  rights.  (People  v.  De  la  Guerra,  40  Cal. 
311.) 

The  elective  franchise  is  not  one  of  the  privileges  of  citizens  se- 
cured by  the  fourteenth  amendment,  nor  is  the  power  of  the  state  to 
determine  the  class  of  inhabitants  who  may  vote  within  her  limits 
curtailed  by  that  amendment;  and  the  only  limitation  contained  in 
the  fifteenth  amendment  is  that  the  state  cannot  discriminate  on 
account  of  race,  color,  or  previous  condition  of  servitude;  but  the 
power  of  exclusion  upon  all  other  grounds,  including  that  of  sex,  re- 
mains intact.  (Van  Valkenburg  v.  Brown,  43  Cal.  43,  13  Am.  Rep. 
136.) 

The  legislature  cannot  add  any  essential  to  the  constitutional  defi- 
nition of  an  elector.     (Bergevin  v.  Curtz,  127  Cal.  86,  59  Pac.  312.) 


Art.  II,  §  1  CONSTITUTION  OP  1879.  192 

The  courts  of  equity  have  power  to  see  that  the  constitutional 
rights  of  suffrage  are  enjoyed.  (Cerini  v.  De  Long,  7  Cal.  App.  398, 
94  Pac.  582.) 

A  person  may  be  an  elector,  although  not  a  registered  voter. 
(Bergevin  v.  Curtz,  127  Cal.  86,  59  Pac.  312.) 

A  woman  who  has  lost  her  United  States  citizenship  by  marrying 
an  alien  is  not  entitled  to  vote.  (Mackenzie  v.  Hare,  165  Cal.  776, 
Ann.  Cas.  1915B,  261,  134  Pac.  713;  affirmed  in  Mackenzie  v.  Hare, 
239  U.  S.  299.) 

Kegistration  is  not  a  qualification  of  an  elector,  and  cannot  add  to 
the  qualifications  fixed  by  the  Constitution;  but  it  is  to  be  regarded 
as  a  reasonable  regulation  by  the  legislature  for  the  purpose  of  ascer- 
taining who  are  qualified  electors  in  order  to  prevent  illegal  voting. 
(Bergevin  v.  Curtz,  127  Cal.  86,  59  Pac.  312.) 

Registration  of  voters.     See  9  R.  C.  L.,  §§  52-55,  pp.  1036-1040. 

A  primary  election  is  an  election  "authorized  by  law,"  within  the 
meaning  of  this  section,  and  the  provisions  thereof,  defining  the  quali- 
fications of  electors,  are  controlling  in  determining  the  right  to  vote 
at  such  elections,  and  such  right  can  neither  be  enlarged  nor  cur- 
tailed by  the  legislature.  (Spier  v.  Baker,  120  Cal.  370,  41  L.  R.  A. 
196,  52  Pac.  659.) 

A  provision  of  the  Primary  Election  Law  that  all  native-born  citi- 
zens, who  since  the  last  general  election  have  become  of  legal  age, 
and  who  have  been  legal  residents  of  the  county  thirty  days  prior  to 
the  election,  as  well  as  all  citizens  who  have  become  such  by  natural- 
ization since  the  last  general  election,  and  who  have  been  residents  as 
aforesaid,  shall  be  entitled  to  vote,  is  an  enlargement  of  the  consti- 
tutional right  of  suffrage  and  void.  (Spier  v.  Baker,  120  Cal.  370, 
41  L.  R.  A.  196,  52  Pac.  659.) 

A  provision  of  the  Primary  Election  Law,  that  no  person  shall  vote 
at  primary  elections  whose  name  does  not  appear  upon  the  last  great 
register,  or  supplements  thereto,  curtails  the  right  of  suffrage,  and  is 
void.     (Spier  v.  Baker,  120  Cal.  370,  41  L.  R.  A.  196,  52  Pac.  659.) 

This  section  does  not  apply  to  a  voter  in  a  reclamation  district. 
(People  V.  Reclamation  Dist.  No.  551,  117  Cal.  114,  48  Pac.  1016.) 

The  act  to  change  the  boundary  line  between  Fresno  and  Kings 
county  is  not  unconstitutional  because  it  prescribes  different  qualifi- 
cations for  the  electors  who  shall  be  entitled  to  vote  at  the  election 
therein  provided  for  than  are  prescribed  by  this  section.  (Wheeler  v. 
Herbert,  152  Cal.  224,  92  Pac.  353.) 

The  provision  of  the  Political  Code  that,  when  a  voter  erases  the 
name  of  a  candidate  without  substituting  another,  the  vote  must  be 
counted  for  the  candidate  whose  name  is  erased,  unless  the  words  "no 
vote"  are  written  atter  the  name  erased,  is  not  unconstitutional,  as 
prescribing  an  educational  qualification  for  the  voter,  or  destroying 
the  secrecy  of  the  ballot.  (Rutledge  v.  Crawford,  91  Cal.  526,  25 
Am.  St.  Rep.  212,  13  L.  R.  A.  761,  27  Pac.  779.) 

A  person  born  in  a  foreign  state,  whose  father  was  once  a  citizen 
of  the  United  States,  but  renounced  his  allegiance  before  the  birth 
of  such  person,  is  not  a  citizen  of  the  United  States.  (Browne  v. 
Dexter,  66  Cal.  39,  4  Pac.  913.) 


193  RIGHT   OF    SUFFRiVGE.  Art.  II,  §§2,  2^ 

The  legislature  has  no  power  to  authorize  electors  to  give  their 
votes  at  any  place  outside  of  the  county  or  district  in  which  they  have 
had  a  legal  residence  for  thirty  days  previous  to  the  election. 
(Bourland  v.  Hildreth,  26  Cal.  161.) 

An  act  providing  for  taking  the  votes  of  the  electors  of  the  state, 
who  are  in  the  military  service  of  the  United  States,  outside  of  the 
county  of  their  legal  residence,  to  be  returned  to  the  secretary  of 
state,  and  counted  in  the  counties  of  the  legal  residence  of  the  elec- 
tors, is  void.  (Bourland  v.  Hildreth,  26  Cal.  161;  Day  v.  Jones,  31 
Cal.  261.) 

The  Constitution  does  not  vest  in  any  person  the  right  to  sign  a 
petition  for  the  recall  of  an  officer.  (Davenport  v.  Los  Angeles,  146 
Cal.  508,  80  Pac.  684.) 

Power  of  legislature  to  define  qualifications  of  voters.  See  note, 
7  Ann.  Cas.  665;  9  R.  C.  L.,  §  6,  p.  982,  §  41,  p.  1024. 

"What  constitutes  conviction  of  crime  within  constitutional  provi- 
sion denying  right  to  vote  to  convicted  person.  See  note,  15 
Ann.  Cas.  103. 

Right  of  suifrage.     See  9  R.  C.  L.,  §§  4-6,  pp.  979-983. 

Right  to  vote  and  citizenship.     See  9  R.  C.  L.,  §  40,  p.  1023. 

Privileges  of  electors. 

Sec.  2.     Electors  shall  in  all  cases,  except  treason,  felony, 

or  breach  of  the  peace,  be  privileged  from  arrest  on  the  days 

of  election,  during  their  attendance  at  such  election,  going 

to  and  returning  therefrom. 

Civil  liability  for  preventing  exercise  of  right  to  vote.  See  note, 
20  Ann.  Cas.  1008. 

Primary  election. 

Sec.  21/2-  The  legislature  shall  have  the  power  to  enact 
laws  relative  to  the  election  of  delegates  to  conventions  of 
political  parties ;  and  the  legislature  shall  enact  laws  provid- 
ing for  the  direct  nomination  of  candidates  for  public  office, 
by  electors,  political  parties,  or  organizations  of  electors 
without  conventions,  at  elections  to  be  known  and  desig- 
nated as  primary  elections ;  also  to  determine  the  tests  and 
conditions  upon  which  electors,  political  parties,  or  organi- 
zations of  electors  may  participate  in  any  such  primary  elec- 
tion. It  shall  also  be  lawful  for  the  legislature  to  prescribe 
that  any  such  primary  election  shall  be  mandatory  and  ob- 
ligatory. The  legislature  shall  also  have  the  power  to  es- 
tablish the  rates  of  compensation  for  primary  election  offi- 

Constitutioa — 13 


Art.  II,  §  21/^  CONSTITUTION  OF  18/9.  194 

cers  serving  at  such  primary  elections  in  any  city,  or  city 
and  county,  or  county,  or  other  subdivision  of  a  designated 
population,  without  making  such  compensation  vmiform, 
and  for  such  purpose  such  law  may  declare  the  population 
of  any  city,  city  and  county,  county  or  political  subdivision. 
Provided,  however,  that  until  the  legislature  shall  enact  a 
direct  primary  election  law  under  the  provisions  of  this  sec- 
tion, the  present  primary  election  law  shall  remain  in  force 
and  effect.     (Amendment  adopted  November  3,  1908.) 

[AMENDMENT  OF  1900.] 
See.  2%.  The  legislature  shall  have  the  power  to  enact  laws 
relative  to  the  election  of  delegates  to  conventions  of  po'litical 
parties  at  elections  known  and  designated  as  primary  elections. 
Also  to  determine  the  tests  and  conditions  upon  which  electors, 
po'litical  parties,  or  organizations  of  voters,  may  participate  in  any 
such  primary  election,  which  tests  or  conditions  may  be  different 
from  the  tests  and  conditions  required  and  permitted  at  other 
elections  authorized  by  law;  or  the  legislature  may  delegate  the 
power  to  determine  such  tests  or  conditions,  at  primary  elections, 
to  the  various  political  parties  participating  therein.  It  shall  also 
be  lawful  for  the  legislature  to  prescribe  that  any  such  primary 
election  law  shall  be  obligatory  and  mandatory  in  any  city,  or  any 
city  and  county,  or  in  any  county,  or  in  any  political  subdivision, 
of  a  designated  population,  and  that  such  law  shall  be  optional  in 
any  city,  city  and  county,  county,  or  political  subdivision  of  a 
lesser  population,  and  for  such  purpose  such  law  may  declare  the 
population  of  any  city,  city  and  county,  county,  or  political  sub- 
division, and  may  also  provide  what,  if  any,  compensation  primary 
election  oflScers  in  defined  places  or  political  subdivisions  may  re- 
ceive, without  making  compensation  either  general  or  uniform. 
(Amendment  adopted  November  6,  1900.) 

PRIMARY  ELECTIONS. — Prior  to  the  adoption  of  this  amendment, 
three  acts  regulating  primary  elections  were  passed  by  the  legisla- 
ture, each  of  which  was  held  invalid  by  the  supreme  court. 

1.  Act  of  1895. — The  first  act  on  the  subject  was  held  invalid  be- 
cause it  only  applied  to  counties  of  the  first  and  second  class,  and 
was  therefore  local  and  special.  (Marsh  v.  Hanly,  111  Cal.  368,  43 
Pac.  975.) 

2.  Act  of  1897. — The  second  act  on  the  subject  was  held  invalid  on 
the  following  grounds:  (a)  because  it  enlarged  the  right  of  suffrage; 
(b)  because  it  restricted  the  right  of  suffrage;  (c)  because  certain 
portions  of  it  were  not  expressed  in  the  title  of  the  act;  (d)  because 
it  was  special,  in  that  it  discriminated  in  favor  of  and  against  certain 
classes  and  individuals.  (Spier  v.  Baker,  120  Cal.  370,  41  L.  R.  A. 
196,  52  Pac.  659.) 

3.  Act  of  1899. — The  third  act  on  the  subject  was  held  invalid  be- 
cause it  permitted  members  of  one  political  party  or  of  no  party  to 
vote  for  delegates  to  the  party  convention  of  another  party,  and  thus 


195  RIGHT  OF  SUFFRAGE.  Art.  II,  §  21/0 

took  away  the  rights  of  self-control  and  self-preservation  from  polit- 
ical parties.  Three  of  the  justices  (Henshaw,  J.,  Van  Dyke,  J.,  and 
McFarland,  J.)  also  held  it  invalid  because  it  prohibited  the  election 
of  delegates  to  a  convention  of  any  political  party  not  representing 
three  per  cent  of  the  votes  cast  at  the  last  election.  (Britton  v. 
Board  of  Election  Commrs.,  129  Cal.  337,  51  L.  R.  A.  115,  61  Pac. 
1115.) 

4.  Act  of  1901. — This  section  authorizes  the.  provision  of  the  pri- 
mary election  law  of  1901,  requiring  each  person  to  take  an  oath  that 
he  has  a  bona  fide  present  intention  of  supporting  the  nominees  of 
the  party.     (Eebstock  v.  Superior  Court,  146  Cal.  308,  80  Pac.  65.) 

The  Primary  Election  Law  of  1909  is  not  violative  of  the  Constitu- 
tion by  providing  for  an  expression  of  a  choice  as  to  a  candidate  for 
United  States  senator  at  a  primary.  (Socialist  Party  v.  Uhl,  155  Cal. 
776,  103  Pac.  181.) 

The  Primary  Election  Law  of  1909  is  not  invalid  because  it  does 
not  give  to  classes  other  than  political  organizations  the  right  to  par- 
ticipate in  the  first  primary  held  under  the  act.  (Socialist  Party  v. 
Uhl,  155  Cal.  776,  103  Pac.  181.) 

The  Constitution  only  requires  that  a  primary  election  law  should 
apply  to  general  elections,  and  the  primary  election  law  of  1909  does 
not  violate  the  Constitution  by  providing  that  its  provisions  as  to 
primary  elections  shall  not  apply  to  the  nomination  of  officers  of 
municipalities  whose  charters  provide  a  system  of  nominating  candi- 
dates for  such  offices.  (Socialist  Party  v.  Uhl,  155  Cal.  776,  103  Pa(f. 
181.) 

The  Constitution  is  not  violated  by  the  primary  election  law  be- 
cause the  latter  does  not  preserve  secrecy  in  voting,  because  it  arbi- 
trarily classifies  voters,  because  it  impairs  the  right  of  citizens  to 
assemble  together  and  instruct  their  representatives,  or  because  it 
invests  state  officers  with  judicial  functions.  (Katz  v.  Fitzgerald, 
152  Cal.  433,  93  Pac.  112.) 

The  legislature  may  compel  electors  when  registering  to  declare 
their  party  affiliations  as  a  prerequisite  to  the  right  to  vote  at  pri- 
mary elections.     (Schostag  v.  Cator,  151  Cal.  600,  91  Pac.  502.) 

The  legislature  may  partly  prescribe  the  tests  of  the  rights  of  elec- 
tors to  vote  at  primary  elections,  and  may  partly  delegate  such  power 
to  political  parties.     (Schostag  v.  Cator,  151  Cal.  600,  91  Pac.  502.) 

The  legislature  had  power  to  determine  the  tests  and  conditions 
upon  which  "electors,"  "political  parties,"  or  "organizations  of  elec- 
tors" should  participate  in  a  primary  election,  and  the  testa  and 
conditions  provided  in  the  primary  election  law  of  1909  being  reason- 
able and  not  arbitrary,  those  provisions  of  the  act  are  not  unconsti- 
tutional.    (Socialist  Party  v.  Uhl,  155  Cal.  776,  103  Pac.  181.) 

Under  this  section  the  legislature  may  prescribe  tests  and  condi- 
tions for  candidates,  as  well  as  for  electors,  but  it  is  not  bound  to 
make  membership  in  a  party  a  condition  of  the  right  to  seek  the 
nomination  of  that  party.  (Hart  v.  Jordan,  168  Cal.  321,  143  Pac. 
537.) 

Effect  of  tie  vote  at  primary  election.     See  note,  Ann.  Cas.  1913E, 

745. 
Primary  elections.     See  9  R.  C.  L.,  §§  86-100,  pp.  1072-1091. 


Art.  II,  §§3-6  CONSTITUTION  OF  1879.  196 

Militia  duty,  privilege  of  electors. 

Sec.  3.  No  elector  shall  be  obliged  to  perform  militia 
duty  on  the  day  of  election,  except  in  time  of  war  or  public 
danger. 

Residence  of  voters,  gained  or  lost. 

Sec.  4.  For  the  purpose  of  voting,  no  person  shall  be 
deemed  to  have  gained  or  lost  a  residence  by  reason  of  his 
presence  or  absence  while  employed  in  the  service  of  the 
United  States,  nor  while  engaged  in  the  navigation  of  the 
waters  of  this  state  or  of  the  United  States,  or  of  the  high 
seas;  nor  while  a  student  at  any  seminary  of  learning;  nor 
while  kept  at  any  almshouse  or  other  asylum,  at  public  ex- 
pense ;  nor  while  confined  in  any  public  prison. 

RESIDENCE. — This  provision  does  not  preclude  the  gaining  of  a 
residence  for  the  purpose  of  voting  by  soldiers,  college  students,  or 
inhabitants  of  a  veterans'  home,  upon  proof  of  their  intention  to  ac- 
quire a  domicile  in  the  county  of  which  they  are  inhabitants. 
(Stewart  v.  Kyser,  105  Cal.  459,  39  Pac.  19;  People  v.  Holden,  28  Cal. 
123.) 

Presence  in  the  state  more  than  six  months  and  in  the  county  more 
than  thirty  days,  under  orders  as  a  soldier  in  the  military  service  of 
the  United  States,  does  not  of  itself  entitle  a  person  to  vote.  (Dev- 
lin V.  Anderson,  38  Cal.  92.) 

This  section  does  not  authorize  an  act  providing  for  the  taking  of 
the  votes  of  electors  of  this  state,  in  the  military  service  of  the  United 
States,  outside  of  the  counties  of  their  legal  residences.  (Bourland 
v.  Hildreth,  26  Cal.  161;  Day  v.  Jones,  31  Cal.  261.) 

Election  by  ballot. 

Sec.  5.  All  elections  by  the  people  shall  be  by  ballot* 
or  by  such  other  method  as  may  be  prescribed  by  law ; 
provided,  that  secrecy  in  voting  be  preserved.  (All  after* 
added  by  amendment  adopted  November  3,  1896.) 

SECRECY  OF  THE  BALLOT. — The  provision  of  the  primary  elec- 
tion law  of  1901,  requiring  the  person  voting  to  take  an  oath  that  he 
has  a  bona  fide  present  intention  of  supporting  the  nominees  of  the 
party,  does  not  violate  the  provision  of  this  section  securing  the 
secrecy  of  the  ballot.  (Rebstock  v.  Superior  Court,  146  Cal.  308,  80 
Pac.  65.) 

Voting  machines. 

Sec.  6.  The  inhibitions  of  this  Constitution  to  the  con- 
trary notwithstanding,  the  legislature  shall  have  power  to 


197  RIGHT  OF  SUFFRAGE.  Art.  II,  §  6 

provide  that  in  different  parts  of  the  state  different  methods 
may  be  employed  for  receiving  and  registering  the  will  of 
the  people  as  expressed  at  elections,  and  may  provide  that 
mechanical  devices  may  be  used  within  designated  subdi- 
visions of  the  state  at  the  option  of  the  local  authority  in- 
dicated by  the  legislature  for  that  purpose.  (Amendment 
adopted  November  4,  1902.) 

Use  of  voting  machines  at  elections.     See  notes,  2  Ann.  Cas.  840; 
12  Ann.  Cas.  474;  9  E.  C.  L.,  §  78,  p.  1062. 


Art.  Ill,  §  1  CONSTITUTION  OF  1879.  198 

AETICLE  III. 

DISTRIBUTION  OF  POWERS. 

Section  1.  The  powers  of  the  government  of  the  state  of 
California  shall  be  divided  into  three  separate  departments 
— the  legislative,  executive,  and  judicial;  and  no  person 
charged  with  the  exercise  of  powers  properly  belonging  to 
one  of  these  departments  shall  exercise  any  functions  ap- 
pertaining to  either  of  the  others,  except  as  in  this  Constitu- 
tion expressly  directed  or  permitted. 

DEPARTMENTS  OF  GOVERNMENT.— The  departments  men- 
tioned in  this  section  are  the  departments  of  the  state  government, 
and  not  the  local  governments  thereafter  to  be  created  by  the  legis- 
lature, (People  V.  Provines,  34  Cal.  520;  Staude  v.  Board  of  Election 
C'ommrs.,  61  Cal.  313;  Holley  v.  Orange  Co.,  106  Cal.  420,  39  Pac.  790. 
Burgoyne  v.  Board  of  Supervisors,  5  Cal.  9,  and  cases  following  it, 
overruled.) 

This  provision  does  not  place  either  department  above  the  law,  nor 
make  either  independent  of  the  other.     (People  v.  Brooks,  16  Cal.  11.) 

As  to  how  far  the  several  departments  are  independent  of  each 
other,  see  People  v.  Twelfth  District  Court,  17  Cal.  547. 

Legislative  department. — The  distinction  between  a  judicial  and  a 
legislative  act  is,  that  the  former  determines  what  the  law  is  and 
what  the  rights  of  the  parties  are,  with  reference  to  transactions 
already  had,  and  the  latter  prescribes  what  the  law  shall  be  in  future 
cases  arising  under  it.     (People  v.  Board  of  Education,  54  Cal.  375.) 

Legislative  power  prescribes  rules  of  conduct  for  the  government  of 
the  citizen  or  subject,  while  judicial  power  punishes  and  redresses 
wrongs  growing  out  of  rules  previously  established.  The  distinction 
lies  between  a  rule  and  a  sentence.  (Ex  parte  Shrader,  33  Cal.  279; 
Smith  V.  Strother,  68  Cal.  194,  8  Pac.  852;  Wulzen  v.  Board  of  Super- 
visors, 101  Cal.  15,  40  Am.  St.  Rep.  17,  35  Pac.  353.) 

The  legislature  cannot  exercise  judicial  functions.  (Guy  v.  Her- 
mance,  5  Cal.  73,  63  Am.  Dec.  85.) 

An  act  providing  that  no  injunction  shall  issue  against  commis- 
sioners created  by  the  act  is  an  exercise  of  judicial  functions,  and 
void.     (Guy  v.  Hermance,  5  Cal.  73,  63  Am.  Dec.  85.) 

The  election  of  officers  is  political,  and  may  be  exercised  by  both 
the  legislative  and  executive  branches  of  the  government.  (People 
v.  Langdon,  8  Cal.  1.) 

To  audit  and  allow  the  claim  of  a  judgment  creditor  against  a  city 
is  not  the  exercise  of  a  judicial  function.  (People  v.  Board  of  Super- 
visors, 11  Cal.  206.) 

The  legislature  may  pass  a  special  law  directing  a  court  to  transfer 
an  indictment  for  murder  pending  therein  to  another  court  for  trial, 
(People  V.  Twelfth  District  Court,  17  Cal.  547.) 

An  act  conferring  upon  boards  of  supervisors  power  to  try  a  con- 
test in  relation  to  the  office  of  county  judge  is  void,  (Stone  v.  Elkins, 
24  Cal.  125.) 


199  DISTRIBUTION  OF  POWERS.  Art.  Ill,  §  1 

An  act  of  the  legislature  granting  a  new  trial,  or  reopening  a  judg- 
ment in  an  action  between  individuals,  would  be  an  assumption  of 
judicial  power;  but  an  act  allowing  a  judgment  in  favor  of  the  state 
to  be  reopened  would  not  be  invalid.     (People  v.  Frisbie,  26  Cal.  135.) 

The  legislature  cannot  by  law  fix  the  assessed  value  of  property. 
(People  V.  Hastings,  29  Cal.  449.) 

The  legislature  has  no  power  to  legalize  existing  pleadings  substan- 
tially defective,  without  first  requiring  them  to  be  amended.  (People 
V.  Mariposa  Co.,  31  Cal.  196.) 

An  act  determining  that  certain  trades  are  offensive  is  not  an  exer- 
cise of  judicial  power.     (Ex  parte  Shrader,  33  Cal.  279.) 

An  act  to  validate  a  judgment  of  a  court  void  for  want  of  jurisdic- 
tion is  void.     (Pryor  v.  Downey,  50  Cal.  388,  19  Am.  Rep.  656.) 

The  exercise  by  the  legislature  of  visitorial  or  supervisorial  power 
over  corporations  does  not  violate  this  section.  (In  re  Bunkers,  1  Cal. 
App.  61,  81  Pae.  748.) 

The  provisions  of  the  act  regulating  the  practice  of  architecture 
that  the  board  may  adopt  rules  and  regulations  is  not  a  delegation 
of  legislative  function.  (Ex  parte  MeManus,  151  Cal.  331,  90  Pac. 
702.) 

The  legislative  approval  of  a  survey  of  a  county  line  before  the 
line  was  actually  run  is  not  a  delegation  of  legislative  power  to  the 
surveyor.  (Trinity  County  v.  Mendocino  County,  151  Cal.  279,  90 
Pac.  685.) 

As  to  whether  the  sale  of  the  property  of  a  minor  is  a  matter  of 
judicial  cognizance  exclusively,  see  Paty  v.  Smith,  50  Cal.  153. 

An  act  prescribing  the  contents  of  a  complaint  to  foreclose  a  street 
assessment  is  not  a  usurpation  of  judicial  functions.  (Whiting  v. 
Townsend,  57  Cal.  515.) 

The  action  of  a  board  of  education,  in  adopting  a  series  of  readers 
for  the  public  schools,  in  lieu  of  a  series  previously  in  use,  is  an  exer- 
cise of  legislative  and  not  judicial  power.  (People  v.  Board  of  Edu- 
cation, 54  Cal.  375.) 

Judicial  department. — The  legislature  has  no  power  to  confer  other 
tiian  judicial  functions  upon  the  courts.  (Burgoyne  v.  Board  of  Su- 
pervisors, 5  Cal.  9;  Hardenburgh  v.  Kidd,  10  Cal.  402.) 

An  act  authorizing  the  judges  of  the  superior  court  to  fix  the  sala- 
ries of  the  oflScial  reporters  of  the  courts  is  void  as  imposing  legis- 
lative functions  upon  the  judiciary.  (Smith  v.  Strother,  68  Cal.  194, 
8  Pac.  852.) 

But  an  act  permitting  the  judge  to-  fix  the  compensation  of  a  short- 
hand reporter  after  the  services  are  rendered  does  not  confer  legis- 
lative power  upon  the  judiciary.  (McAllister  v.  Hamlin,  83  Cal.  361, 
23  Pac.  357;  Stevens  v.  Truman,  127  Cal.  155,  59  Pac.  397.) 

An  act  conferring  upon  district  judges  the  power  to  appoint  police 
commissioners  is  not  in  conflict  with  this  section.  (Staude  v.  Board 
of  Election  Commrs.,  61  Cal.  313.) 

A  law  providing  for  the  change  of  names  of  corporations  upon  peti- 
tion to  the  superior  court  is  not  unconstitutional  as  delegating  legis- 
lative power  to  the  judiciary.  (Matter  of  La  Societe  Francaise  etc., 
123  Cal.  525,  56  Pac.  458,  787.) 


Art.  Ill,  §  1 


CONSTITUTION    OF    1879. 


200 


The  legislature  cannot  confer  nonjudicial  power  upon  the  judges  of 
a  court  as  commissioners  any  more  than  upon  the  court  itself.  (Bur- 
goyne  v.  Board  of  Supervisors,  5  Cal.  9.) 

An  act  conferring  upon  the  courts  of  sessions  the  entire  manage- 
ment of  the  financial  business  of  the  counties  is  void.  (Burgoyne  v. 
Board  of  Supervisors,  5  Cal.  9;  Phelan  v,  San  Francisco,  6  Cal.  531; 
Phelan  v.  San  Francisco,  20  Cal.  39.) 

An  act  authorizing  the  trial  judge  to  make  the  crime  a  felony  or  a 
misdemeanor  is  not  an  attempt  to  delegate  legislative  power.  (In  re 
O'Shea,  11  Cal.  App.  -568,  105  Pac.  776.) 

The  proceedings  provided  by  the  "Torrens  Land  Law"  are  judicial 
and  not  administrative.  (Eobinson  v.  Kerrigan,  151  Cal.  40,  121  Am. 
St.  Eep.  90,  12  Ann.  Cas.  829,  90  Pac.  129.) 

The  duties  conferred  on  the  county  recorder  by  the  "Torrens  Land 
Law"  are  not  judicial.  (Robinson  v.  Kerrigan,  151  Cal.  40,  121  Am. 
St.  Rep.  90,  12  Ann.  Cas.  829,  90  Pac.  129.) 

The  "McEnerney  Act"  for  the  establishment  of  titles  provides  for 
a  judicial  proceeding  and  not  an  administrative  proceeding.  (Hoff- 
man V.  Superior  Court,  151  Cal.  386,  90  Pac.  939.) 

The  corporation  license  tax  act  of  March  29,  1905,  is  not  unconsti- 
tutional as  conferring  judicial  power  upon  the  secretary  of  state.  His 
determination  of  the  class  to  which  a  corporation  belongs,  as  provided 
in  section  7  of  the  act,  is  a  mere  incident  to  the  exercise  of  a  purely 
ministerial  function  and  is  not  binding  on  any  corporation.  (Kaiser 
Land  &  Fruit  Co.  v.  Curry,  155  Cal.  638,  103  Pac.  341.) 

The  power  of  appointment  of  probation  officers  vested  by  the  Juve- 
nile Court  Law  (Stats.  1909,  p.  213)  in  the  superior  court  in  the  exer- 
cise of  its  jurisdiction  as  a  juvenile  court  is  not  unconstitutional  as 
vesting  an  executive  function  in  judicial  officers.  (NichoU  v.  Koster, 
157  Cal.  416,  108  Pac.  302.) 

The  State  Dental  Law  does  not  confer  upon  the  board  of  dental 
examiners  judicial  functions  by  giving  it  authority  to  indorse  repu- 
table dental  colleges.  (Ex  parte  "Whitley,  144  Cal.  167,  1  Ann.  Cas. 
13,  77  Pac.  879.) 

An  act  providing  that  the  court  may  prescribe  by  rule  what  shall 
be  deem-ed  a  waiver  of  a  jury  trial  is  in  violation  of  this  section. 
(Exline  v.  Smith,  5  Cal.  112.) 

The  judiciary  has  power  to  examine  into  the  action  of  the  execu- 
tive in  surrendering  a  fugitive  from  justice.  (In  re  Manchester,  5 
Cal.  237.) 

The  legislature  cannot  confer  upon  the  county  judge  power  to  call 
an  election.     (Dickey  v.  Hurlburt,  5  Cal.  343.) 

An  act  conferring  upon  the  county  court  power  of  incorporating 
towns  is  void.     (People  v.  Nevada,  6  Cal.  143.) 

The  assessment  of  taxes  is  not  a  judicial,  but  a  legislative,  function. 
(Hardenburgh  v.  Kidd,  10  Cal.  402.) 

The  duties  of  a  judge  in  a  proceeding  to  condemn  land  are  judicial. 
(Gilmer  v.  Lime  Point,  18  Cal.  229.) 

The  legislature  may  declare  the  mayor  of  a  city  to  be  ex  officio  a 
justice  of  the  peace.     (Uridias  v.  Morrill,  22  Cal.  473.) 

The  chief  justice  of  the  supreme  court  is  prohibited  by  this  section 
from    exercising    the    functions    and    duties    of    trustee    of    the    state 


201  DISTRIBUTION  OF  POWERS.  Art.  Ill,  §  1 

library.     (People  v.  Sanderson,  30  Cal.  160.     But  see  People  v.  Prov- 
ines,  34  Cal.  520.) 

This  section  does  not  prohibit  a  police  judge  of  a  city  from  per- 
forming the  duties  of  a  police  commissioner.  (People  v.  Provines, 
34  Cal.  520.) 

The  legislature  may  invest  judicial  officers  with  power  to  punish  for 
contempt.     (Crocker  v.  Conrey,  140  Cal.  213,  73  Pac.  1006.) 

The  legislature  cannot  invest  ministerial  officers  with  the  power  to 
punish  individuals  by  fine  and  imprisonment.  (Burns  v.  Superior 
Court,  140  Cal.  1,  73  Pac.  597.) 

The  power  to  remove  a  public  officer  for  cause  is  not  judicial  in  its 
character.     (Matter  of  Carter,  141  Cal.     316,  74  Pac.  997.) 

Executive  department. — The  power  of  appointment  to  office  is  not 
essentially  an  executive  function,  within  the  meaning  of  this  section; 
and  such  power  may  be  exercised  by  the  members  of  the  legislature, 
(People  v.  Freeman,  80  Cal.  233,  13  Am.  St.  Kep.  122,  22  Pac.  173; 
People  V.  Langdon,  8  Cal.  1.) 

The  power  to  levy  a  tax  is  purely  legislative,  and  cannot  be  dele- 
gated to  the  county  superintendent  of  schools,  who  is  an  executive 
officer,     (McCabe  v.  Carpenter,  102  Cal.  469,  36  Pac.  836.) 

A  law  requiring  the  auditor's  certificate  that  there  is  sufficient 
money  in  the  treasury  before  an  appropriation  is  made  is  valid,  and 
does  not  vest  judicial  functions  in  a  ministerial  officer.  (Higgins  v. 
San  Diego  Water  Co.,  118  Cal.  524,  45  Pac.  824,  50  Pac.  670;  Pollok 
V.  San  Diego,  118  Cal.  593,  50  Pac.  769.) 

A  law  conferring  power  upon  city  trustees  to  remove  a  municipal 
officer  is  valid.  (Croly  v.  Board  of  Trustees  of  Sacramento,  119  Cal. 
229,  51  Pac.  323.) 

An  act  giving  to  horticultural  commissioners  power  to  determine 
whether  any  particular  place  is  a  nuisance,  because  infected  with  in- 
sect pests,  does  not  confer  judicial  power  on  such  commissioners. 
(Los  Angeles  v.  Spencer,  126  Cal.  670,  77  Am.  St.  Rep.  217,  59  Pac. 
202.) 

A  law  authorizing  the  high  school  board  to  furnish  the  supervisors 
with  an  estimate  of  the  amount  of  the  tax  required,  but  leaving  it  to 
the  supervisors  to  fix  the  tax,  is  not  invalid  as  delegating  legislative 
power  to  an  executive  officer.  (People  v.  Lodi  High  School  Dist., 
124  Cal.  694,  57  Pac.  660;  McCabe  v.  Carpenter,  102  Cal.  469,  36  Pac. 
836,  distinguished.) 

Division  of  powers   of  government  between  the  several  depart- 
ments.    See  6  E,  C.  L.,  §§  144-181,  pp.  144-182. 


Art.  IV,  §  1  CONSTITUTION  OF  1879.  202 

ARTICLE  IV. 

LEGISLATIVE   DEPARTMENT. 

§  1.  Senate  and  assembh^,  and  enacting  clause — Initiative  and  ref- 
erendum. 

§     2.  Sessions  of  legislature. 

§     3.  Election  and  term  of  assemblymen. 

§     4.  Election  and  term  of  senators. 

§     5.  Number  and  classes  of  senators. 

§     6.  Senatorial  and  legislative  districts. 

§     7.  Organization  of  legislature. 

§     8.  What  number  constitutes  a  quorum. 

§     9.  Rules  for  their  government — Expulsions. 

§   10.  Each  house  to  keep  a  journal. 

§  11.  Privilege  of  members. 

§   12.  Vacancies,  how  filled. 

§   13.  Open  doors  and  secret  sessions. 

§   14.  Adjournment,  how  long  and  where  to. 

§  15.  Origin  and  passage  of  bills. 

§  16.  Approval  and  return  of  bills — Passage  over  veto. 

§   17.  Impeachments,  presentment  and  trial  of. 

§   18.  What  officers  liable  to  impeachment — Judgment  on. 

§   19.  Member  ineligible  to  office  created  during  the  term. 

§  20.  Who  ineligible  to  office  under  state  government — Proviso. 

§  21.  Embezzlement  or  defalcation — Penalty  for. 

§  22.  Public  moneys  and  accounts — Statement  of  receipts  and  ex- 
penditures— PanamarPacific  International  Exposition. 

§  23.  Compensation  of  members  and  attaches. 

§  23a.  Officers,  employees  and  attaches. 

§  24.  Title  of  laws — Revision  and  amendment — Publication  of. 

§  25.  Local  and  special  laws  prohibited. 

§  25J.  Fish  and  game  districts. 

§  26.  Lotteries  prohibited — Purchase  and  sale  of  shares  of  stock  to 
be  regulated. 

§  27.  Congressional  and  senatorial  districts. 

§  28.  Elections  by  legislature  to  be  viva  voce. 

§  29.  General  appropriation  bill,  what  to  contain. 

§  30.  Restriction  on  appropriations  and  grants  of  aid. 

§  31.  Credit  of  state  or  municipalities  not  to  be  loaned. 

§  32.  Extra  compensation  to  officers  forbidden. 

§  33.  Charges  of  gas  and  telegraph  corporations  to  be  regulated. 

§  34.  Special  appropriation  bill,  restriction  as  to. 

§  35.  Lobbying   defined — Punishment  for. 

§  36.  State  highways. 

Senate  and  assembly,  and  enacting  clause — Initiative  and 
referendum. 

Section  1.     The  legislative  power  of  this  state  shall  be 
vested  in  a  senate  and  assembly  which  shall  be  designated 


il 


203  LEGISLATIVE    DEPARTMENT,  Art.  IV,  §  1 

"The  legislature  of  the  State  of  California,"  but  the  people 
reserve  to  themselves  the  power  to  propose  laws  and  amend- 
ments to  the  Constitution,  and  to  adopt  or  reject  the  same, 
at  the  polls  independent  of  the  legislature,  and  also  reserve 
the  power,  at  their  own  option,  to  so  adopt  or  reject  any 
act,  or  section  or  part  of  any  act,  passed  by  the  legislature. 
The  enacting  clause  of  every  law  shall  be  "The  people  of 
the  State  of  California  do  enact  as  follows :" 

The  first  power  reserved  to  the  people  shall  be  known  as 
the  initiative.  Upon  the  presentation  to  the  secretary  of 
state  of  a  petition  certified  as  herein  provided  to  have  been 
signed  by  qualified  electors,  equal  in  number  to  eight  per 
cent  of  all  the  votes  cast  for  all  candidates  for  governor  at 
the  last  preceding  general  election,  at  which  a  governor  Avas 
elected,  proposing  a  law  or  amendment  to  the  Constitution, 
set  forth  in  full  in  said  petition,  the  secretary  of  state  shall 
submit  the  said  proposed  law  or  amendment  to  the  Constitu- 
tion to  the  electors  at  the  next  succeeding  general  election 
occurring  subsequent  to  ninety  days  after  the  presentation 
aforesaid  of  said  petition,  or  at  any  special  election  called 
by  the  governor  in  his  discretion  prior  to  such  general  elec- 
tion. All  such  initiative  petitions  shall  have  printed  across 
the  top  thereof  in  twelve  point  black-face  type  the  folloAv- 
ing :  "Intiative  measure  to  be  submitted  directly  to  the 
electors." 

Upon  the  presentation  to  the  secretary  of  state,  at  any 
time  not  less  than  ten  days  before  the  commencement  of  any 
regular  session  of  the  legislature,  of  a  petition  certified  as 
herein  provided  to  have  been  signed  by  qualified  electors 
of  the  state  equal  in  number  to  five  per  cent  of  all  the  votes 
cast  for  all  candidates  for  governor  at  the  last  preceding 
general  election,  at  which  a  governor  Avas  elected,  proposing 
a  law  set  forth  in  full  in  said  petition,  the  secretary  of  state 
shall  transmit  the  same  to  the  legislature  as  soon  as  it  con- 
A'enes  and  organizes.  The  laAv  proposed  by  such  petition 
shall  be  either  enacted  or  rejected  A\'ithout  change  or  amend- 
ment by  the  legislature,  within  forty  days  from  the  time  it 
is  received  by  the  legislature.  If  any  laAv  proposed  by  such 
petition  shall  be  enacted  by  the  legislature  it  shall  be  sub- 


Art.  IV,  §  1  CONSTITUTION  OF  1879.  20i 

ject  to  referendum,  as  hereinafter  provided.  If  any  law  so 
petitioned  for  be  rejected,  or  if  no  action  is  taken  upon  it 
by  the  legislature  within  said  forty  days,  the  secretary  of 
state  shall  submit  it  to  the  people  for  approval  or  rejection 
at  the  next  ensuing  general  election.  The  legislature  may 
reject  any  measure  so  proposed  by  initiative  petition  and 
propose  a  different  one  on  the  same  subject  by  a  yea  and 
nay  vote  upon  separate  roll-call,  and  in  such  event  both 
measures  shall  be  submitted  by  the  secretary  of  state  to  the 
electors  for  approval  or  rejection  at  the  next  ensuing  gen- 
eral election  or  at  a  prior  special  election  called  by  the  gov- 
ernor, in  his  discretion,  for  such  purpose.  All  said  initia- 
tive petitions  last  above  described  shall  have  printed  in 
twelve  point  black-face  type  the  following :  "Initiative  meas- 
ure to  be  presented  to  the  legislature." 

The  second  power  reserved  to  the  people  shall  be  known 
as  the  referendum.  No  act  passed  by  the  legislature  shall 
go  into  effect  until  ninety  days  after  the  final  adjournment 
of  the  session  of  the  legislature  which  passed  such  act,  ex- 
cept acts  calling  elections,  acts  providing  for  tax  levies  or 
appropriations  for  the  usual  current  expenses  of  the  state, 
and  urgency  measures  necessary  for  the  immediate  preser- 
vation of  the  public  peace,  health  or  safety,  passed  by  a  two- 
thirds  vote  of  all  the  members  elected  to  each  house.  When- 
ever it  is  deemed  necessary  for  the  immediate  preservation 
of  the  public  peace,  health  or  safety  that  a  law  shall  go  into 
immediate  effect,  a  statement  of  the  facts  constituting  such 
necessity  shall  be  set  forth  in  one  section  of  the  act,  which 
section  shall  be  passed  only  upon  a  yea  and  nay  vote,  upon  a 
separate  roll-call  thereon ;  provided,  however,  that  no  meas- 
ure creating  or  abolishing  any  office  or  changing  the  salary, 
term  or  duties  of  any  officer,  or  granting  any  franchise  or 
special  privilege,  or  creating  any  vested  right  or  interest, 
shall  be  construed  to  be  an  urgency  measure.  Any  law  so 
passed  by  the  legislature  and  declared  to  be  an  urgency 
measure  shall  go  into  immediate  effect. 

Upon  the  presentation  to  the  secretary  of  state  within 
ninety  days  after  the  final  adjournment  of  the  legislature 
of  a  petition   certified  as  herein  provided,   to  have   been 


205  LEGISLATIVE   DEPARTMENT.  Art,  IV,  §  1 

signed  by  qualified  electors  equal  in  number  to  five  per  cent 
of  all  the  votes  cast  for  all  candidates  for  governor  at  the 
last  preceding  general  election  at  which  a  governor  was 
elected,  asking  that  any  act  or  section  or  part  of  any  act 
of  the  legislature,  be  submitted  to  the  electors  for  their  ap- 
proval or  rejection,  the  secretary  of  state  shall  submit  to 
the  electors  for  their  appproval  or  rejection,  such  act,  or 
section  or  part  of  such  act,  at  the  next  succeeding  general 
election  occurring  at  any  time  subsequent  to  thirty  days 
after  the  filing  of  said  petition  or  at  any  special  election 
which  may  be  called  by  the  governor,  in  his  discretion,  prior 
to  such  regular  election,  and  no  such  act  or  section  or  part 
of  such  act  shall  go  into  effect  until  and  unless  approved  by 
a  majority  of  the  qualified  electors  voting  thereon;  but  if 
a  referendum  petition  is  filed  against  any  section  or  part 
of  any  act  the  remainder  of  such  act  shall  not  be  delayed 
from  going  into  effect. 

Any  act,  law  or  amendment  to  the  Constitution  submitted 
to  the  people  by  either  initiative  or  referendum  petition 
and  approved  by  a  majority  of  the  votes  cast  thereon,  at 
any  election,  shall  take  effect  five  days  after  the  date  of  the 
official  declaration  of  the  vote  by  the  secretary  of  state.  No 
act,  law  or  amendment  to  the  Constitution,  initiated  or 
adopted  by  the  people,  shall  be  subject  to  the  veto  power 
of  the  governor,  and  no  act,  law  or  amendment  to  the  Con- 
stitution, adopted  by  the  people  at  the  polls  under  the  initia- 
tive provisions  of  this  section,  shall  be  amended  or  re- 
pealed except  by  a  vote  of  the  electors,  unless  otherwise 
provided  in  said  initiative  measure;  but  acts  and  laws 
adopted  by  the  people  under  the  referendum  provisions  of 
this  section  may  be  amended  by  the  legislature  at  any  subse- 
quent session  thereof.  If  any  provision  or  provisions  of 
tAvo  or  more  measures,  approved  by  the  electors  at  the  same 
election,  conflict,  the  provision  or  provisions  of  the  meas- 
ure receiving  the  highest  affirmative  vote  shall  prevail.  Un- 
til otherwise  provided  by  laAv,  all  measures  submitted  to  a 
vote  of  the  electors,  under  the  provisions  of  this  section, 
shall  be  printed,  and  together  with  arguments  for  and 
against  each  such  measure  by  the  proponents  and  opponents 


Art.  IV,  §  1  CONSTITUTION  OF  1879.  20G 

thereof,  shall  be  mailed  to  each  elector  in  the  same  manner 
as  now  provided  by  law  as  to  amendments  to  the  Constitu- 
tion, proposed  by  the  legislature ;  and  the  persons  to  prepare 
and  present  such  arguments  shall,  until  otherwise  provided 
by  law,  be  selected  by  the  presiding  officer  of  the  senate. 

If  for  any  reason  any  initiative  or  referendum  measure, 
proposed  by  petition  as  herein  provided,  be  not  submitted 
at  the  election  specified  in  this  section,  such  failure  shall  not 
prevent  its  submission  at  a  succeeding  general  election,  and 
no  law  or  amendment  to  the  Constitution,  proposed  by  the 
legislature,  shall  be  submitted  at  any  election  unless  at  the 
same  election  there  shall  be  submitted  all  measures  proposed 
by  petition  of  the  electors,  if  any  be  so  proposed,  as  herein 
provided. 

Any  initiative  or  referendum  petition  may  be  presented 
in  sections,  but  each  section  shall  contain  a  full  and  correct 
copy  of  the  title  and  text  of  the  proposed  measure.  Each 
signer  shall  add  to  his  signature  his  place  of  residence,  giv- 
ing the  street  and  number  if  such  exist.  His  election  pre- 
cinct shall  also  appear  on  the  paper  after  his  name.  The 
number  of  signatures  attached  to  each  section  shall  be  at 
the  pleasure  of  the  person  soliciting  signatures  to  the  same. 
Any  qualified  elector  of  the  state  shall  be  competent  to  so- 
licit said  signatures  within  the  county  or  city  and  county 
of  which  he  is  an  elector.  Each  section  of  the  petition  shall 
bear  the  name  of  the  county  or  city  and  county  in  which  it 
is  circulated,  and  only  qualified  electors  of  such  county  or 
city  and  county  shall  be  competent  to  sign  such  section. 
Each  section  shall  have  attached  thereto  the  affidavit  of  the 
person  soliciting  signatures  to  the  same,  stating  his  own 
qualifications  and  that  all  the  signatures  to  the  attached 
section  were  made  in  his  presence  and  that  to  the  best  of 
his  knowledge  and  belief  each  signature  to  the  section  is 
the  genuine  signature  of  the  person  whose  name  it  purports 
to  be,  and  no  other  affidavit  thereto  shall  be  required.  The 
affidavit  of  any  person  soliciting  signatures  hereunder  shall 
be  verified  free  of  charge  by  any  officer  authorized  to  ad- 
minister oaths.  Such  petitions  so  verified  shall  be  prima 
facie  evidence  that  the  signatures  thereon  are  genuine  and 


207  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  1 

that  the  persons  signing  the  same  are  qualified  electors. 
Unless  and  until  it  be  otherwise  proven  upon  official  inves- 
tigation, it  shall  be  presumed  that  the  petition  presented 
contains  the  signatures  of  the  requisite  number  of  quali- 
fied electors. 

Each  section  of  the  petition  shall  be  filed  with  the  clerk 
or  registrar  of  voters  of  the  county  or  city  and  county  in 
which  it  was  circulated,  but  all  said  sections  circulated  in 
any  county  or  city  and  county  shall  be  filed  at  the  same 
time.  "Within  twenty  days  after  the  filing  of  such  petition 
in  his  office  the  said  clerk,  or  registrar  of  voters,  shall  deter- 
mine from  the  records  of  registration  what  number  of  quali- 
fied electors  have  signed  the  same,  and  if  necessary  the 
board  of  supervisors  shall  allow  said  clerk  or  registrar  addi- 
tional assistants  for  the  purpose  of  examining  such  petition 
and  provide  for  their  compensation.  The  said  clerk  or  reg- 
istrar, upon  the  completion  of  such  examination,  shall  forth- 
with attach  to  said  petition,  except  the  signatures  thereto 
appended,  his  certificate,  properly  dated,  showing  the  result 
of  said  examination  and  shall  forthwith  transmit  said  peti- 
tion, together  with  his  said  certificate,  to  the  secretary  of 
state  and  also  file  a  copy  of  said  certificate  in  his  office. 
Within  forty  days  from  the  transmission  of  the  said  petition 
and  certificate  by  the  clerk  or  registrar  to  the  secretary  of 
state,  a  supplemental  petition  identical  with  the  original  as 
to  the  body  of  the  petition  but  containing  supplemental 
names,  may  be  filed  with  the  clerk  or  registrar  of  voters, 
as  aforesaid.  The  clerk  or  registrar  of  voters  shall  within 
ten  days  after  the  filing  of  such  supplemental  petition  make 
the  examination  thereof,  as  of  the  original  petition,  and 
upon  the  completion  of  such  examination  shall  forthwith 
attach  to  said  petition  his  certificate,  properly  dated,  show- 
ing the  result  of  said  examination,  and  shall  forthwith  trans- 
mit a  copy  of  said  supplemental  petition,  except  the  signa- 
tures thereto  appended,  together  with  his  certificate,  to  the 
secretary  of  state. 

When  the  secretary  of  state  shall  have  received  from  one 
or  more  county  clerks  or  registrars  of  voters  a  petition  cer- 
tified as  herein  provided  to  have  been  signed  by  the  requi- 


Art.  IV,  §  1  CONSTITUTION  OF  1879.  208 

site  number  of  qualified  electors,  he  shall  forthwith  transmit 
to  the  county  clerk  or  registrar  of  voters  of  every  county 
or  city  and  county  in  the  state  his  certificate  showing  such 
fact.  A  petition  shall  be  deemed  to  be  filed  with  the  secre- 
tary of  state  upon  the  date  of  the  receipt  by  him  of  a  certifi- 
cate or  certificates  showing  said  petition  to  be  signed  by  the 
requisite  number  of  electors  of  the  state.  Any  county  clerk 
or  registrar  of  voters  shall,  upon  receipt  of  such  copy,  file 
the  same  for  record  in  his  office.  The  duties  herein  imposed 
upon  the  clerk  or  registrar  of  voters  shall  be  performed  by 
such  registrar  of  voters  in  all  cases  where  the  office  of  regis- 
trar of  voters  exists. 

The  initiative  and  referendum  powers  of  the  people  are 
hereby  further  reserved  to  the  electors  of  each  county,  city 
and  county,  city  and  town  of  the  state,  to  be  exercised  un- 
der such  procedure  as  may  be  provided  by  law.  Until  other- 
wise provided  by  law,  the  legislative  body  of  any  such 
county,  city  and  county,  city  or  town  may  provide  for  the 
manner  of  exercising  the  initiative  and  referendum  powers 
herein  reserved  to  such  counties,  cities  and  counties,  cities 
and  towns,  but  shall  not  require  more  than  fifteen  per  cent 
of  the  electors  thereof  to  propose  any  initiative  measure 
nor  more  than  ten  per  cent  of  the  electors  thereof  to  order 
the  referendum.  Nothing  contained  in  this  section  shall  be 
construed  as  affecting  or  limiting  the  present  or  future 
powers  of  cities  or  cities  and  counties  having  charters 
adopted  under  the  provisions  of  section  eight  of  article 
eleven  of  this  Constitution.  In  the  submission  to  the  elec- 
tors of  any  measure  under  this  section,  all  officers  shall  be 
guided  by  the  general  laws  of  this  state,  except  as  is  herein 
otherwise  provided.  This  section  is  self-executing,  but  leg- 
islation may  be  enacted  to  facilitate  its  operation,  but  in  no 
way  limiting  or  restricting  either  the  provisions  of  this  sec- 
tion or  the  powers  herein  reserved.  (Amendment  approved 
October  10,  1911.) 

[ORIGINAL  SECTION.] 
Section  1.  The  legislative  power  of  this  state  shall  be  vested  in 
a  senate  and  assembly,  which  shall  be  designated  "The  Legis- 
lature of  the  State  of  California,"  and  the  enacting  clause  of  every 
law  shall  be  as  follows:  "The  People  of  the  State  of  California, 
represented  in  Senate  and  Assembly,  do  enact  as  follows." 


209  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  1 

LEGISLATIVE  POWER. — The  legislature  has  the  same  unlimited 
power  of  legislation  which  resides  in  the  British  parliament,  except 
when  restrained  and  limited  either  by  express  words  of  the  Constitu- 
tion or  by  necessary  implication;  and  its  power  cannot  be  restrained 
by  any  unnecessary  implications.  (Mitchell  v.  Winnek,  117  Cal.  520, 
49  Pac.  579.) 

The  legislature  is  not  synonymous  with  the  law-making  power  and 
does  not  include  the  governor  except  as  applied  to  the  enactment  of 
laws.     (Brooks  v.  Fischer,  79  Cal.  173,  4  L.  E.  A.  429,  21  Pac.  652.) 

The  Constitution  is  not  a  grant  of  power,  but  a  restriction  upon  tho 
power  of  the  legislature,  and  the  legislature  has  the  entire  legislative 
power  of  the  state  not  prohibited  to  the  legislature  or  conferred  upon 
some  other  body.  (Sheehan  v.  Scott,  145  Cal.  684,  79  Pac.  350;  Men- 
denhall  v.  Gray,  167  Cal.  233,  139  Pac.  67.) 

All  powers  of  any  of  the  departments  of  the  government,  not  dis- 
posed of  or  distributed  by  the  Constitution,  are  left  at  the  disposal 
of  the  legislature.     (Eoss  v.  Whitman,  6  Cal.  361.) 

The  legislature  is  not  controlled  as  to  its  powers  or  the  mode  of 
their  exercise  otherwise  than  by  the  restrictions  of  the  Constitution. 
(Hobart  v.  Supervisors,  17  Cal.  23;  People  v.  Seymour,  16  Cal.  332,  76 
Am.  Dec.  521.) 

The  legislature  represents  the  independent  sovereignty  of  the  peo- 
ple of  the  state,  and  is  supreme  and  unlimited  in  all  legitimate  sub- 
ject matters  of  legislation,  and  is  controlled  only  by  such  restrictions 
as  are  imposed  by  the  organic  law  of  the  state.  (Beals  v.  Amador 
Co.,  35  Cal.  624.) 

The  legislature  may  accept  a  private  bounty  for  the  benefit  of  the 
state,  although  such  bounty  influences  legislative  action.  (People  v. 
Bigler,  5  Cal.  23.) 

The  legislature  has  full  power  to  alienate  the  tide-lands  of  the 
state,  subject  only  to  the  right  of  the  public  to  use  them  for  the  pur- 
poses of  navigation  and  fishing.  (Oakland  v.  Oakland  Water  Front 
Co.,  118  Cal.  160,  50  Pac.  277.) 

The  legislature  may  determine  whether  or  not  a  certain  improve- 
ment is  of  a  public  nature,  and  the  courts  will  not  interfere  with  this 
determination,  unless  it  is  palpably  and  entirely  for  private  benefit. 
(In  re  Madera  Irr.  Dist.,  92  Cal.  296,  27  Am.  St.  Eep.  106,  14  L.  E.  A. 
755,  28  Pac.  272,  675;  Hagar  v.  Supervisors,  47  Cal.  222.) 

As  to  the  validity  of  acts  contrary  to  natural  justice,  see  Peo- 
ple v.  Bigler,  5  Cal.  23. 

Under  this  section  of  the  Constitution  of  1849  the  legislature  had 
the  power  to  create  municipal  corporations  at  will,  by  special  laws, 
and  a  given  territory  could  be  incorporated  by  it  as  a  municipal  cor- 
poration without  the  consent  or  the  acceptance  of  the  inhabitants 
thereof.     (People  v.  California  Fish  Co.,  166  Cal.  576,  138  Pac.  79.) 

Exercise  of  power. — A  legislative  assembly  has  all  the  powers  and 
privileges  which  are  necessary  to  the  proper  exercise,  in  all  respects, 
of  its  appropriate  functions.     (Ex  parte  McCarthy,  29   Cal.  395.) 

The  senate  has  power  to  summon  witnesses  to  testify  concerning 
a  charge  of  bribery  brought  against  its  members.  (Ex  parte  McCar- 
thy, 29  Cal.  395.) 

Constitution — 14 


Art.  IV,  §  1  CONSTITUTION  OF  1879.  210 

The  legislature  may  compel  the  attendance  of  all  persons  within  the 
limits  of  their  constituency,  as  witnesses,  in  regard  to  subjects  on 
which  they  have  power  to  act  and  into  which  they  institute  an  inves- 
tigation.    (Ex  parte  McCarthy,  29  Cal.  395.) 

Witnesses  before  either  branch  of  the  legislature  may  be  compelled 
to  testify  by  process  of  contempt.     (Ex  parte  McCarthy,  29  Cal.  395.) 

Appropriations. — Under  this  section  appropriations  for  the  erection 
of  buildings,  the  construction  of  other  improvements  for  state  insti- 
tutions, and  the  payment  of  the  transportation  of  Civil  War  veter- 
ans to  and  from  the  Gettysburg  reunion,  cannot  he  paid  prior  to- 
ninety  days  after  the  adjournment  of  the  legislature.  (McClure  v. 
Nye,  22  Cal.  App.  248,  is's  Pac.  1145.) 

Delegation  of  power. — The  power  to  make  laws  cannot  be  delegated 
by  the  legislature  to  the  people  of  the  state,  or  to  any  portion  of  the 
people.     (Ex  parte  Wall,  48  Cal.  279,  17  Am.  Eep.  425.) 

The  legislature  has  no  power  to  refer  a  statute  to  the  people  to 
decide  by  a  popular  vote  whether  it  shall  go  into  effect.  (Ex  parte 
Wall,  48  Cal.  279,  17  Am.  Eep.  425.) 

As  to  whether  the  legislature  may  confer  upon  the  voters  of  a 
county  directly  the  power  to  enact  laws,  questioned  but  not  decided. 
(Ex  parte  Anderson,  134  Cal.  69,  86  Am.  St.  Rep.  236,  66  Pac.  194.) 

There  cannot  be  two  equal,  co-ordinate  law-making  powers  within 
the  same  territory,  each  existing  without  anj'  restrictions  the  one  upon 
the  other;  and,  therefore,  a  law  empowering  the  voters  of  a  county 
and  also  the  board  of  supervisors  of  the  county  to  enact  and  repeal 
laws  on  the  same  subjects  is  invalid.  (Ex  parte  Anderson,  134  Cal. 
69,  86  Am.  St.  Rep.  236,  66  Pac.  194.) 

The  legislature  cannot  delegate  its  general  legislative  functions,  but 
it  can  authorize  others  to  do  those  things  which  it  cannot  under- 
standingly  or  advantageously  do  itself.  Thus,  it  can  delegate  to  the 
voters  of  a  county  power  to  select  a  county  seat.  (Upham  v.  Super- 
visors,  8  Cal.   378.) 

Laws  may  be  either  absolute,  dependent  upon  no  contingency,  or 
subject  to  conditions.  They  may  take  effect  only  upon  the  happen- 
ing of  events  which  are  future  and  uncertain,  and  among  others,  the 
voluntary  act  of  the  parties  upon  whom  they  are  designed  to  operate. 
(Blandiug  v.  Burr,  13  Cal.  343.) 

Thus,  a  provision  of  an  act  that  the  question  of  the  issuance  of 
bonds  shall  be  submitted  to  the  people  is  valid.  (Blanding  v.  Burr, 
13  Cal.  343.) 

But  while  a  statute  may  be  conditional,  so  that  its  taking  effect 
may  depend  upon  a  subsequent  event  which  may  be  named  in  it,  yet 
this  event  must  be  one  which  shall  produce  such  a  change  of  circum- 
stances that  the  lawmakers,  in  their  own  judgment,  can  declare  it 
wise  that  the  law  shall  take  effect  when  the  event  shall  occur.  (Ex 
parte  Wall,  48  Cal.  279,  17  Am.  Rep.  425.) 

A  county  ordinance  prohibiting  the  granting  of  a  liquor  license  iu 
any  precinct  in  which  a  majority  of  the  electors  voted  against  the 
granting  of  liquor  licenses  therein,  is  not  a  delegation  of  legislative 
functions.     (Denton  v.  Vanu,  8  Cal.  App.  677,  97  Pac.  675.) 


211  LEGISLATIVE    DEPARTMENT.  Art.  IV,  §  1 

The  grant  of  power  comprehends  the  exercise  of  all  the  sovereign 
authority  of  the  state  in  matters  which  are  properly  the  subject  of 
legislation.     (People  v.  Nye,  9  Cal.  App.  148,  98  Pac.  241.) 

A  common  council  has  no  power  to  delegate  its  functions  and  in 
the  absence  of  special  authority  has  no  power  to  submit  a  question 
to  the  electors  for  the  purpose  of  ascertaining  their  desires.  (Galindo 
V.  Walter,  8  Cal.  App.  234,  96  Pac.  505.) 

The  act  regulating  the  practice  of  medicine  and  surgery  does  not 
delegate  legislative  functions.  (Arwine  v.  Board  of  Medical  Exam- 
iners, 151  Cal.  499,  91  Pac.  319.) 

A  freeholders'  charter  may  incorporate  the  procedure  known  as  the 
initiative  and  referendum  so  as  to  authorize  the  majority  of  the  elec- 
tors to  participate  directly  in  the  enactment  of  local  laws.  (In  re 
Pfahler,  150  Cal.  71,  11  Ann.  Cas.  911,  11  L,  R.  A.  (N.  S.)  1092,  88 
fac.  270.) 

An  act  authorizing  the  submission  to  the  people  of  the  question  of 
a  tax  for  an  improvement  is  valid.  (Pattison  v.  Yuba  Co.,  13  Cal. 
175.) 

The  act  providing  for  the  annexation  of  territory  to  incorporated 
towns  does  not,  in  its  provision  for  a  vote  by  the  people,  comprise 
any  unwarranted  delegation  of  legislative  power.  (People  v.  Town 
of  Ontario,  148  Cal.  625,  84  Pac.  205.) 

The  provision  of  the  act  creating  the  board  of  medical  examiners 
permitting  the  board  to  revoke  a  license  for  "advertising  of  medical 
business  in  which  grossly' improbable  statements  are  made"  is  void. 
(Hewitt  V.  Board  of  Medical  Examiners,  148  Cal.  590,  113  Am.  St.  Rep. 
315,  7  Ann.  Cas.  750,  3  L.  R.  A.  (N.  S.)   896,  84  Pac.  39.) 

The  legislature  may  delegate  to  the  legislative  authorities  power 
to  determine  what  shall  constitute  a  public  offense.  (Denninger  v. 
Recorder's  Court,  145  Cal.  629,  79  Pac.  360.) 

The  legislature  may  make  a  local  law  depend  for  effect  upon  the 
will  of  all  the  voters  of  a  locality,  or  of  a  majority,  or  upon  the  assent 
of  a  few,  as  in  the  case  of  removal  of  capitols,  courthouses,  etc.,  upon 
■donations  or  other  advantages  received.  (Hobart  v.  Supervisors,  17 
Cal.  23.     But  see  Dickey  v.  Hurlburt,  5  Cal.  343;  by  Heydenfeldt,  J.) 

The  legislature  cannot  delegate  its  power  to  fix  water  rates. 
(Spring  Valley  Water  Works  v.  San  Francisco,  61  Cal.  3.) 

An  act  which  leaves  it  permissive  with  a  board  whether  or  not  the 
work  shall  be  done,  and  when  and  where  taxes  shall  be  levied  for 
the  same,  is  an  unlawful  delegation  of  legislative  functions.  (Per 
McKee,  J.,  in  People  v.  Parks,  58  Cal.  624,  641.) 

An  act  authorizing  a  commissioner  to  require  factories  and  wqrk- 
shops  to  provide  mechanical  contrivances  to  prevent  the  inhaling  of 
dust,  filaments  and  gases,  when  it  appears  to  him  that  it  can  be  to 
a  great  extent  prevented  by  such  contrivances,  is  an  unlawful  dele- 
gation of  legislative  functions.  (Schaezlein  v.  Cabaniss,  135  Cal.  466, 
87  Am.  St.  Rep.  122,  56  L.  R.  A.  733,  67  Pac.  755.) 

An  ordinance  prohibiting  the  alteration  or  repair  of  any  wooden 
building  within  certain  designated  fire  limits,  without  permission  of 
the  tire  wardens  and  approval  of  a  majority  of  the  committee  on  fire 
department  and  the  mayor,  is  not  an  unlawful  delegation  of  legis- 
lative functions.     (Ex  parte  Fiske,  72  Cal.  125,  13  Pac.  310.) 


Art.  IV,  §  1 


CONSTITUTION    OF    1879. 


212 


An  act  providing  for  forming  the  county  of  Orange  out  of  part  of 
the  county  of  Los  Angeles,  upon  the  assent  of  two-thirds  of  the  quali- 
fied electors  of  the  proposed  new  county,  is  not  a  delegation  of  legis- 
lative power.  (People  v.  McFadden,  81  Cal.  489,  15  Am.  St.  Rep.  66, 
22  Pac.  851.) 

Municipal  boards  can  delegate  only  duties  ministerial  in  character, 
and  not  calling  for  the  exercise  of  discretion.  (Holley  v.  Orange  Co., 
106  Cal.  420,  39  Pac.  790.) 

Powers  conferred  upon  a  municipal  corporation,  involving  the  exer- 
cise of  judgment  and  discretion,  are  in  the  nature  of  public  trusts, 
and  cannot  be  delegated.    (Scollay  v.  Butte  Co.,  67  Cal.  249,  7  Pac.  661.) 

The  legislature  had  power  to  enact  the  act  of  1891,  to  establish 
law  libraries,  and  to  provide  that  counties  might  come  within  the 
provisions  of  the  act,  as  the  boards  of  supervisors  of  the  respective 
counties  might  determine.  (Board  of  Library  Trustees  v.  Supervis- 
ors, 99  Cal.  571,  34  Pac.  244.) 

A  provision  of  the  County  Government  Act  of  1883,  that  the  boards 
of  supervisors  of  counties  of  certain  designated  classes  may  allow 
county  officers  a  deputy  whenever  in  the  opinion  of  such  board  the 
salary  of  such  officers  is  insufficient,  is  an  unlawful  delegation  of 
legislative  power.  (Dougherty  v.  Austin,  94  Cal.  601,  16  L.  R.  A.  161, 
28  Pac.  834,  29  Pac.  1092;  People  v.  Johnson,  95  Cal.  471,  31  Pac.  611.) 

An  act  providing  that  a  board  of  harbor  commissioners  may  impose 
penalties  not  exceeding  five  hundred  dollars  for  the  violation  of  the 
rules  made  by  them  is  a  delegation  of  legislative  functions.  (Harbor 
Commrs.  v.  Redwood  Co.,  88  Cal.  491,  22  Am.  St.  Rep.  321,  26  Pac. 
375.) 

The  legislature  cannot  delegate  to  a  board  of  medical  examiners  the 
power  of  declaring  what  acts  shall  constitute  a  misdemeanor.  (Per 
Paterson,  J.,  in  Ex  parte  McNulty,  77  Cal.  164,  11  Am.  St.  Rep.  257, 
19  Pac.  237.) 

An  act  authorizing  a  commission  to  make  certain  quarantine  regu- 
lations, and  declaring  that  a  violation  of  them  shall  be  a  misdemeanor, 
is  an  unlawful  delegation  of  legislative  power.  (Ex  parte  Cox,  63 
Cal.  21.) 

An  act  creating  a  state  board  of  equalization  and  providing  that 
such  board  shall  determine  the  rate  of  taxation,  is  not  an  unlawful 
delegation  of  legislative  power.  (Savings  etc.  Soc.  v.  Austin,  46  Cal. 
415.     But  see  Houghton  v.  Austin,  47  Cal.  646.) 

An  act  which  submits  to  a  popular  vote  of  the  electors  of  a  county 
the  question  whether  certain  territory  shall  be  annexed  thereto  is 
valid.     (People  v.  Nally,  49  Cal.  478.) 

The  so-called  Wyllie  or  "Local  Option  Act"  of  April  4,  1911,  is  not 
invalid  as  involving  a  delegation  of  its  legislative  power  by  the  legis- 
lature to  the  electors.  (Ex  parte  Beck,  162  .Cal.  701,  124  Pac.  543; 
Matter  of  Ellsworth,  165  Cal.  677,  133  Pac.  272.) 

The  legislature  may  provide  either  a  state  system  for  the  inspection, 
measurement  and  graduation  of  merchandise  and  manufactured  arti- 
cles and  commodities,  administered  bj'  state  officers,  or  a  local  sys- 
tem administered  by  the  respective  counties,  cities,  or  cities  and 
counties,  through  officers  which  they  may  appoint  under  the  authority 
of  the  general  statute.     (Scott  v.  Boyle,  164  Cal.  321,  128  Pac.  941.) 


213  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  1 

Police  power. — The  legislature  cannot,  under  the  guise  of  police 
regulations,  enact  laws  not  pertaining  to  the  public  welfare,  health  or 
morals,  and  which  impose  onerous  and  unnecessary  burdens  upon  busi- 
ness and  property.     (Ex  parte  Hayden,  147  Cal.  649,  109  Am.  St.  Rep. 

183,  1  L.  R.  A.  (N.  S.)  184,  82  Pac.  315;  Ex  parte  Drexel,  147  Cal.  763, 
3  Ann.  Cas.  878,  2  L.  R.  A.  (N.  S.)  588,  82  Pac.  429.) 

An  act  designed  to  obtain  for  people  of  a  certain  locality  an  advan- 
tage cannot  be  upheld  as  a  police  regulation.  (Hellman  v.  Los 
Angeles,  147  Cal.  653,  82  Pac.  313.) 

Police  regulations  are  not  unconstitutional  because  they  may  inci- 
dentally operate  to  deprive  individuals  of  their  property  without  com- 
pensation, nor  because  they  may  create  a  monopoly.  (In  re  Zhiz- 
huzza,  147  Cal.  328,  81  Pac.  955.) 

An  act  forbidding  the  issuance  of  trading  stamps  and  coupons  re- 
deemable in  "anything  unidentified  by  or  unselected  by  the  purchaser 
at  the  time  of  the  sale,"  is  unconstitutional.  (Ex  parte  Drexel,  147 
Cal.  763,  3  Ann.  Cas.  878,  2  L.  R.  A.  (N.  S.)  588,  82  Pac.  429.) 

An  act  requiring  all  fruit  shipped  to  be  stamped  with  a  statement 
truly  designating  the  county  and  immediate  locality  in  which  such 
fruit  is  growu  is  not  a  reasonable  exercise  of  the  police  power.  (Ex 
parte  Hayden,  147  Cal.  649,  109  Am.  St.  Rep.  183,  1  L.  R.  A.  (N.  S.) 

184,  82  Pac.  315.) 

The  police  power  will  not  authorize  the  state  to  take  private  prop- 
erty for  public  use  without  compensation  when  such  property  can  be 
condemned  and  paid  for.  (People  v.  Elk  River  etc.  Co.,  107  Cal.  221, 
48  Am.  St.  Rep.  125,  40  Pac.  531.) 

An  act  making  it  a  misdemeanor  to  keep  open  a  barber-shop  on 
Sundays  or  other  holidays  is  unreasonable.  (Ex  parte  Jentzsch,  112 
Cal.  468,  32  L.  R.  A.  664,  44  Pac.  803.) 

The  state  has  authority  to  regulate  fisheries  within  its  borders,  and 
may  provide  the  places  as  well  as  the  times  in  which  fish  may  be 
taken,  and  may  make  exclusive  grants  of  fisheries  in  designated 
waters.     (Heckman  v.  Swett,  107  Cal.  276,  40  Pac.  420.) 

An  act  providing  for  a  bounty  on  coyote  scalps  comes  within  the 
purview  of  the  police  power.  (Ingram  v.  Colgan,  106  Cal.  113,  46  Am. 
St.  Rep.  221,  28  L.  R.  A.  187,  38  Pac.  315,  39  Pac.  437.) 

A  law  making  it  a  felony  to  sell  intoxicating  liquor  to  an  Indian 
is  valid.     (People  v.  Bray,  105  Cal.  344,  27  L.  R.  A.  158,  38  Pac.  731.) 

It  is  within  the  police  power  of  the  state  in  the  protection  of  the 
wild  game  of  the  state  to  prohibit  the  sale  of  the  meat  of  any  wild 
game  within  the  state.  (Ex  parte  Maier,  103  Cal.  476,  42  Am.  St. 
Rep.  129,  37  Pac.  402.) 

It  is  not  competent  for  the  legislature  to  vest  in  an  adjoining  pro- 
prietor the  power  to  prevent  his  neighbor  from  building  such  struc- 
ture on  his  own  land  as  he  pleases,  provided  it  is  not  a  nuisance;  and 
it  is  not  a  nuisance  merely  because  it  obstructs  the  passage  of  light 
and  air.  But  the  legislature  may  regulate  the  erection  of  division 
walls  on  the  division  line.  (Western  etc.  Co.  v.  Knickerbocker,  103 
Cal.  Ill,  37  Pac.  192.) 

An  act  to  prohibit  Chinese  persons  from  coming  into  the  state,  and 
prescribing   terms   and   conditions   upon   which   those   residing   in   tho 


Art.  IV,  §  1  CONSTITUTION  OF  1879.  214 

state  shall  be  permitted  to  remain  and  travel  therein,  is  void.  (Ex 
parte    Ah  Cue,  101  Cal.  197,  35  Pac.  556.) 

The  act  of  1891,  permitting  the  organization  and  creation  of  sani- 
tary districts,  is  within  the  police  power  of  the  state.  (Woodward  v. 
l''ruitvale  Sanitary  Dist.,  99  Cal.  554,  34  Pac.  239.) 

An  act  forbidding  the  sale  of  liquors  within  certain  distances  of 
certain  named  educational  and  reformatory  institutions  is  a  valid 
police  regulation.     (Ex  parte  MeClain,  61  Cal.  436,  44  Am.  Rep.  554.) 

It  is  within  the  police  power  of  the  state  to  authorize  the  channel 
of  a  river  to  be  turned  or  straightened.     (Green  v.  Swift,  47  Cal.  536.) 

The  legislature  has  no  power  to  declare  that  a  physician  is  guilty 
of  unprofessional  conduct  in  advertising  himself  as  a  specialist  in 
certain  diseases,  and  punishable  as  for  a  misdemeanor.  (Per  Thorn- 
ton, J.,  in  Ex  parte  McNulty,  77  Cal.  164,  11  Am.  St.  Rep.  257,  19 
Pac.  237.) 

The  legislature  has  power  to  organize  agricultural  societies.  (Peo- 
ple V.  San  Joaquin  Valley  Agr.  Assn.,  151  Cal.  797,  91  Pac.  740.) 

The  business  of  pawnbroker  is  the  subject  of  police  regulation. 
(Levinson  v.  Boas,  150  Cal.  185,  11  Ann.  Cas.  661,  12  L.  R.  A.  (N.  S.) 
575,  88  Pac.  825.) 

The  support  of  poor  and  destitute  persons  unable  to  care  for  them- 
selves is  a  public  purpose,  clearly  within  the  general  legislative  power. 
(Board  of  Directors  v.  Nye,  8  Cal.  App.  527,  97  Pac.  208.) 

The  Tenement  House  Act  regulating  the  construction  of  buildings 
intended  for  human  habitation  and  providing  that  such  buildings  shall 
not  be  occupied  until  the  issuance  of  certain  certificates  by  the  health 
and  building  departments  is  within  the  police  power  of  the  state. 
(Matter  of  Stoltenberg,  21  Cal.  App.  722,  132  Pac.  841.) 

An  ordinance  limiting  the  hours  of  labor  in  public  laundries  to  the 
period  between  7  A.  M.  and  6  P.  M.  is  constitutional.  (In  re  Wong 
Wing,  167  Cal.  109,  51  L.  R.  A.  (N.  S.)  361,  138  Pac.  695.) 

Police  power  and  the  fourteenth  amendment.     See  note,  25  Am. 

St.  Rep.  862,  888. 
Police  power  defined.     See  note,  53  Am.  St.  Rep.  572. 
Police  power  to  regulate  or  prohibit  sale  or  manufacture  of  goods. 

See  note,  1  Am.  St.  Rep.  644. 
Building  regulations.     See  note,  93  Am.  St.  Rep.  403. 
Validity  of  statute  or  ordinance  regulating  sewage  disposal.     See 

note,  Ann.  Cas.  1913D,  61. 

Validity   of  legislation   for   prevention   of  fraud  in  weights   and 

measures.     See  note,  Ann.  Cas.  1912C,  251. 
Police  power.     See  6  R.  C.  L.,  §§  182-231,  pp.  183-245. 

INITIATIVE  AND  EEFERENDUM.— The  validity  of  the  initia- 
tive and  referendum  was  upheld  by  the  supreme  court  of  the  United 
States  in  the  case  of  Pacific  States  Telegraph  and  Telephone  Co.  v. 
State  of  Oregon,  223  U.  S.  118,  56  L.  Ed.  377,  32  Sup.  Ct.  Rep.  224. 
Mr.  Louis  Bartlett  prepared  for  the  Commonwealth  Club  of  California 
an  exhaustive  review  of  the  authorities  applicable  to  the  question,  and 


I 


215  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  1 

with  his  permission  and  the  permission  of  the  club  that  review  is  here 
set  forth: 

"To  the  Commonwealth  Club: 

"Gentlemen: — The  following  cases  discuss  'The  republican  form  of 
government  guaranteed  to  states  by  the  United  States  Constitution.' 

"1. 
"Luther  v.  Borden,  7  How.  1,  12  L.  Ed.  581. 

"This  involved  determining  which  state  government  was  in  force  in 
Ehode  Island  in  1842 — the  old  charter  government  established  when 
Ehode  Island  was  an  English  colony,  or  a  new  government  attempted 
to  be  established  by  some  people  of  the  state,  acting  without  warrant 
of  the  existing  law.  It  was  held  that  'What  is  the  existing  govern- 
ment' is  a  political  question,  to  be  settled  by  the  political  branch  of 
the  government;  and  in  admitting  the  representatives  of  a  state  to 
Congress,  the  latter  necessarily  decides  that  the  form  of  government 
is  republican;  and  its  'decision  is  binding  on  every  other  department 
of  the  government  and  could  not  be  questioned  in  a  judicial  tribunal.' 

"The  question  of  whit  is  a  republican  form  of  government  did  not 
arise  and  was  not  discussed. 

"2. 

"Minor  v.  Happersett,  21  Wallace,  175,  88  IT.  S.  175,  23  L.  Ed.  631. 

"This  was  an  action  against  a  registrar  of  voters  for  refusing  to 
register  a  woman — the  state  Constitution  providing  that  'every  male 
citizen  of  the  United  States  .  .  .  shall  be  entitled  to  vote.'  It  was 
held  that  the  right  to  vote  is  not  conferred  upon  woman  by  the  guar- 
anty to  every  state  of  a  republican  form  of  government. 

"  'The  guaranty  is  of  a  republican  form  of  government.  No  par- 
ticular government  is  designated  as  republican,  neither  is  the  exact 
form  to  be  guaranteed,  in  any  manner  especially  designated.  Here, 
as  in  other  parts  of  the  instrument,  we  are  compelled  to  resort  else- 
where to  ascertain  what  was  intended. 

"  'The  guaranty  necessarily  implies  a  duty  on  the  part  of  the  states 
themselves  to  provide  such  a  government.  All  the  states  had  govern- 
ments when  the  Constitution  was  adopted.  In  all,  the  people  par- 
ticipated to  some  extent,  through  their  representatives  elected  in  the 
manner  specially  provided.  These  governments  the  Constitution  did 
not  change.  They  were  accepted  precisely  as  they  were,  and  it  is, 
therefore,  to  be  presumed  that  they  were  such  as  it  was  the  duty  of 
the  states  to  provide.  Thus  we  have  unmistakable  evidence  of  what 
was  republican  in  form,  within  the  meaning  of  that  term  as  employed 
in  the  Constitution. 

"'As  has  been  seen,  all  the  citizens  of  the  states  were  not  invested 
with  the  right  of  suffrage.  In  all,  save  perhaps  New  Jersey,  this 
right  was  only  bestowed  upon  men,  and  not  upon  all  of  them.  Under 
these  circumstances  it  is  certainly  now  too  late  to  contend  that  a 
government  is  not  republican,  within  the  meaning  of  this  guaranty  in 
the   Constitution,  because   women   are  not   made   voters.' 

"This  case  concerns  itself  with  the  classes  of  people  who  can  par- 
ticipate in  the  government  and  not  with  the  method  of  their  action, 
whether  direct  or  representative. 


Art,  IV,  §  1  CONSTITUTION  OF  1879.  216 

"3. 

"In  re  Pfahler,  150  Cal.  71  [11  Ann.  Cas.  911,  11  L.  R.  A.  (K  S.) 

1092,  88  Pac.  270]. 

"The  question  was  as  to  the  constitutionality  of  a  police  regulation 
of  the  city  of  Los  Angeles,  adopted  as  an  ordinance  under  the  initia- 
tive provisions  of  the  charter: 

"Held  by  majority  of  the  court,  McFarland  dissenting,  that  the 
federal  guaranty  of  a  republican  form  of  government  does  not  pro- 
hibit the  direct  exercise  of  legislative  power  by  the  people  of  a  sub- 
division of  a  state  in  strictly  local  affairs,  as  this  system  existed 
and  was  well  known  when  the  Constitution  was  adopted.  'It  is  ap- 
parent from  this  condition  of  affairs,  existing  continuously  from  the 
moment  of  the  adoptfon  of  the  Constitution,  that,  if  there  is  anything 
therein  inconsistent  with  a  republican  form  of  government,  within  the 
meaning  of  these  words  as  used  in  the  federal  Constitiition,  the  con- 
stitutional guaranty  was  intended  to  apply  only  to  the  form  of  gov- 
ernment for  the  state  at  large,  and  not  at  all  to  the  local  government 
prescribed  by  the  state  for  its  municipalities  and  other  subdivisions.' 

"4. 

"Kadderly  v.  City  of  Portland,  44  Or.  118,  74  Pac.  710,  75  Pac.  222. 
"Held  that  the  provision  of  the  United  States  Constitution,  guar- 
anteeing to  every  state  a  republican  form  of  government  does  not  pre- 
vent a  state  Constitution  from  providing  for  the  initiative  and 
referendum  in  laws  of  state-wide  application.  'The  initiative  and 
referendum  amendment  does  not  abolish  or  destroy  the  republican 
form  of  government  or  substitute  another  in  its  place.  The  repre- 
sentative character  of  the  government  still  remains.  The  people  sim- 
ply reserve  to  themselves  a  larger  share  of  legislative  power,  but  they 
have  not  overthrown  the  republican  form  of  government  and  substi- 
tuted another  in  its  place.' 

"5. 

"Kiernan  v.  City  of  Portland,  57  Or.  454,  37  L.  R.  A.  (N.  S.)  332,  112 

Pac.  402,  at  page  404. 

"In  discussing  the  constitutional  guaranty  of  a  republican  form  of 
government,  the  court  said: 

"  'To  ascertain  whether  taking  from  the  legislature  and  delegating 
to  the  municipalities  or  to  the  localities  affected,  local  self-govern- 
ment, or  a  right  to  enact,  maintain,  and  alter  their  charters  as  the 
legislature  formerly  did,  and  whether  the  taking  from  the  legislature 
the  right  to  make  special  laws  upon  the  subject  violates  this  provi- 
sion of  the  national  Constitution  makes  it  important  that  we  first 
ascertain  what  is  meant  by  a  republican  form  of  government.  It  is 
an  expression  which  all  assume  to  understand,  yet,  judging  from  the 
many  unsuccessful  attempts  of  eminent  statesmen  and  writers  to 
give  it  a  clear  meaning,  it  would  seem  the  phrase  is  not  susceptible 
to  being  given  a  precise  definition.  Especially  is  this  true  when 
sought  to  be  applied  to  the  Constitution  of  different  states,  concern- 
ing which  Mr.  James  Madison,  a  member  of  the  constitutional  con- 
vention, said:  "...  If  we  resort  for  a  criterion  to  the  different 
principles  on  which  different  forms  of  government  are  established,  we 


217  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  1 

may  define  a  republic  to  be,  or  may  at  least  bestow  that  name  on,  a 
government  which  derives  all  its  powers  directly  or  indirectly  from 
the  great  body  of  the  people,  and  is  administered  by  persons  holding 
their  office  during  pleasure  for  a  limited  period  or  during  good  behav- 
ior. It  is  essential  to  such  government  that  it  be  derived  from  the 
great  body  of  society  and  not  from  any  inconsiderable  portion  of  a 
favored  class  of  it.  .  .  .  "  The  Federalist  (Hamilton  ed.),  paper  39, 
p.  SOL  Another  and  more  pointed  definition  appears  in  Chisholm  v. 
Georgia,  2  Dall.  419-457,  1  L.  Ed.  440,  by  Mr.  Justice  "Wilson,  member 
of  the  constitutional  convention,  who,  but  a  short  time  after  the 
adoption  of  the  federal  Constitution,  in  adverting  to  what  is  meant 
by  a  republican  form  of  government,  remarked,  "As  a  citizen,  I  know 
the  government  of  that  state  (Georgia)  to  be  republican,  and  my 
short  definition  of  such  a  government — one  constructed  on  this  prin- 
ciple, that  the  supreme  power  resides  in  the  body  of  the  people." 
From  which  it  follows  that  the  converse  must  be  true;  that  is  to  say, 
any  government  in  which  the  supreme  power  resides  with  the  people 
is  republican  in  form.  See,  also,  Mr.  Justice  Wilson's  remarks  to 
the  same  effect  reported  in  5  Ellicott's  Debates,  160. 

"  'Measured  in  the  light  of  the  above,  it  is  diflicult  to  conceive  of 
any  system  of  law-making  coming  nearer  to  the  great  body  of  the 
people  of  the  entire  state,  or  by  those  comprising  the  various  munici- 
palities, than  that  now  in  use  here,  and,  being  so,  we  are  at  a  loss 
to  understand  how  the  adoption  and  use  of  this  system  can  be  held 
a  departure  from  a  republican  form  of  government.  It  was  to  escape 
the  oppression  resulting  from  governments  controlled  by  the  select 
few,  so  often  ruling  under  the  assumption  that  "might  makes  right," 
that  gave  birth  to  republics.  Monarchical  rulers  refuse  to  recognize 
their  accountability  to  the  people  governed  by  them.  In  a  republic 
the  converse  is  the  rule.  The  tenure  of  office  may  be  for  a  short  or 
a  long  period,  or  even  for  life,  yet  those  in  office  are  at  all  times 
answerable,  either  directly  or  indirectly  to  the  people,  and  in  propor- 
tion to  their  responsibility  for  those  for  whom  they  may  be  the  pub- 
lic agents,  and  the  nearer  the  power  to  enact  laws  and  control  public 
servants  lies  with  the  great  body  of  the  people,  the  more  nearly  does 
a  government  take  unto  itself  the  form  of  a  republic, — not  in  name 
alone,  but  in  fact.  From  this  it  follows  that  each  republic  may  dif- 
fer in  its  political  system  or  in  the  political  machinery  by  which  it 
moves,  but,  so  long  as  the  ultimate  control  of  its  officials  and  affairs 
of  state  remain  in  its  citizens,  it  will  in  the  eye  of  all  republics  be 
recognized  as  a  government  of  that  class.  Of  this  we  have  many 
examples  in  Central  and  South  America.  It  becomes  then  a  matter 
of  degree,  and  the  fear  manifested  b}'  the  briefs  filed  in  this  case 
would  seem  to  indicate,  not  that  we  are  drifting  from  the  secure 
moorings  of  a  republic,  but  that  our  state,  by  the  direct  system  of 
legislation  complained  of,  is  becoming  too  democratic — advancing  too 
rapidly  toward  a  republic  pure  in  form.  This,  it  is  true,  counsel  for 
petitioner  does  not  concede,  but  under  any  interpretation  of  which 
the  term  is  capable,  or  from  any  view  thus  far  found  expressed  in 
the  writings  of  the  prominent  statesmen  who  were  members  of  the 
constitutional  convention,  or  who  figured  in  the  early  upbuilding  of 
the  nation,  it  follows  that  the  system  here  assailed  brings  us  nearer 


Art.  IV,  §  1  CONSTITUTION  OF  1879.  218 

to  a  state  republican  in  form  than  before  its  adoption.  Mr.  Thomas 
Jefferson,  in  1816,  when  discussing  the  term  republic,  defined  and 
illustrated  his  view  thereof  as  follows:  "Indeed,  it  must  be  acknowl- 
edged that  the  term  'republic'  is  of  very  vague  application  in  every 
language.  Witness  the  self-styled  republics  of  Holland,  Switzerland, 
Genoa,  Venice,  Poland.  Were  I  to  assign  to  this  term  a  precise  and 
definite  idea,  I  would  say,  purely  and  simply,  it  means  a  government 
by  its  citizens  in  mass,  acting  directly  and  not  personally,  according 
to  the  rules  established  by  the  majority,  and  that  every  other  gov- 
ernment is  more  or  less  republican,  in  proportion  as  it  has  in  its  com- 
position more  or  less  of  this  ingredient  of  the  direct  action  of  the 
citizens."  Writings  of  Thomas  Jefferson,  vol.  15,  p.  19.  It  is  well 
known  that  at  the  time  of  the  adoption  of  the  federal  Constitution 
there  existed  in  some  of  the  Atlantic  states  a  system  of  local  gov- 
ernment, known  as  "New  England  towns,"  in  which  the  people  had  the 
right  to  legislate  upon  various  matters,  and  masses  assembling  at 
stated  periods  for  that  purpose;  all  of  which  was  within  the  knowl- 
edge of  those  composing  the  constitutional  convention.  After  ob- 
serving that  a  direct  republic  under  his  definition  would  necessarily 
be  restrained  to  narrow  limits,  such  as  in  a  New  England  township, 
and  that  the  next  step  in  use  at  that  time  was  through  the  repre- 
sentative system,  Mr.  Jefferson  pointed  out  that  the  farther  the 
officials  of  state  or  nation  are  separated  from  the  masses  proportion- 
ately less  does  such  state  or  government  retain  the  elements  of  a 
republic;  and  on  page  23  concludes:  "On  this  view  of  the  import  of 
the  term  'republic,'  instead  of  saying,  as  has  been  said,  that  it  may 
mean  anything  or  nothing,  we  may  say  with  truth  and  meaning  that 
governments  are  more  or  less  republican,  as  they  have  more  or  less 
of  the  element  of  popular  election  and  control  in  their  composition; 
and  believing,  as  I  do,  that  the  mass  of  citizens  is  the  safest  deposi- 
tory of  their  own  rights  and,  especially,  that  the  evils  flowing  through 
duperies  of  the  people  are  less  injurious  than  those  from  the  egoism 
of  their  agents,  I  am  a  friend  to  that  composition  of  government 
which  has  in  it  the  most  of  this  ingredient."  The  observations  quoted 
are  in  full  accord  with  the  recorded  views  of  all  of  the  writers  and 
statesmen  of  that  time,  when  the  intention  of  the  framers  of  our 
national  Constitution  was  fully  understood,  in  the  light  of  which  it 
seems  inconceivable  that  a  state,  merely  because  it  may  evolve  a 
system  by  which  its  citizens  become  a  branch  of  its  legislative  depart- 
ment, co-ordinate  vfith  their  representatives  in  the  legislature,  loses 
caste  as  a  republic.  The  extent  to  which  a  legislature  of  any  state 
may  enact  laws  is,  and  always  has  been,  one  of  degree,  dejjending 
upon  limitations  prescribed  by  its  Constitution;  some  Constitutions 
having  few  and  others  many  limitations.  But  in  all  states,  whatever 
may  be  the  restriction  placed  upon  their  representatives,  the  people, 
either  by  constitutional  amendment  or  by  convention,  called  for  that 
purpose,  have  had,  and  have,  the  power  to  directly  legislate,  and  to 
change  all  or  any  laws  so  far  as  deemed  proper — limited  only  by 
clear  inhibitions  of  the  national  Constitution.  Cooley  Const.  Lim. 
(6th  ed.),  44. 

"  'An  examination   of  our  state  Constitution,   as  first  adopted,  dis- 
closes   many    restrictions    upon    the    law-making    department,    among 


219  LEGISLATIVE   DEPARTMENT.  Art.  lY,  §  1 

which  is  a  provision  to  the  effect  that  no  amendment  thereto  should 
be  submitted  to  the  people  for  ratification  until  after  it  passed  two 
successive  sessions  of  the  legislature.  In  course  of  time,  an  amend 
ment  under  this  provision  was  legally  submitted  and  adopted  by  a 
majority  vote  of  the  people,  by  which  the  people  reserved  the  right 
to  change  the  Constitution,  or  any  part  thereof  without  awaiting  this 
legislative  formality,  the  validity  of  which  is  not  open  to  doubt.  It 
is  not  possible,  indeed,  it  is  not  practicable,  then,  for  the  people  fur- 
ther to  restrict  the  power  of  their  representatives  to  legislate  upon 
matters  of  public  interest,  and  in  so  doing  are  they  not,  and  even 
under  the  old  system  were  they  not,  directly  legislating?  This  sys- 
tem of  direct  legislation  has  been  in  common  use  throughout  the  vari- 
ous state  governments  since  their  inception,  but  until  the  adoption 
of  the  initiative  and  referendum  amendments,  no  one  was  heard  to 
assert  that  an  amendment  to  the  Constitution  of  a  state  merely 
because  of  depriving  the  legislature  of  some  law-making  power  or 
powers  held  by  it  at  the  adoption  of  the  national  Constitution  was 
void  on  the  grounds  of  being  inconsistent  with  a  republican  form  of 
government.  The  absurdity  of  such  a  contention,  if  made,  would  at 
once  be  obvious.' 

"6. 

"Following  the  case  of  Luther  v.  Borden,  it  appears  that  when  Con- 
gress, the  political  branch  of  the  federal  government,  has  admitted 
the  representatives  of  a  state  to  Congress,  it  has  by  that  fact  decided 
that  the  form  of  government  of  that  state  is  republican. 

"Congress  has  admitted  the  representatives  of  the  state  of  Okla- 
homa, and  by  so  doing  has  declared  that  its  form  of  government  is 
republican.  Its  Constitution  contains  the  following  provisions  con- 
cerning the  initiative  and  referendum: 

"Article  V. 

"Legislative  Department. 

"Initiative  and  Referendum. 

"Section  1.  The  legislative  authority  of  the  state  shall  be  vested 
in  a  legislature,  consisting  of  a  Senate  and  a  House  of  Representa- 
tives, but  the  people  reserve  to  themselves  the  power  to  propose  laws 
and  amendments  to  the  Constitution  and  to  enact  or  reject  the  same 
at  the  polls  independent  of  the  legislature,  and  also  reserve  power 
at  their  own  option  to  approve  or  reject  at  the  polls  any  act  of  the 
legislature. 

"Section  2.  The  first  power  reserved  by  the  people  is  the  initiative, 
and  eight  per  centum  of  the  legal  voters  shall  have  the  right  to  pro- 
pose any  legislative  measure,  and  fifteen  per  centum  of  the  legal 
voters  shall  have  the  right  to  propose  amendments  to  the  Constitution 
by  petition,  and  every  such  petition  shall  include  the  full  text  of  the 
measure  so  propo-sed.  The  second  power  is  the  referendum,  and  it 
may  be  ordered  (except  as  to  laws  necessary  for  the  immediate  pres- 
ervation of  public  peace,  health  or  safety),  either  by  petition  signed 
by  five  per  centum  of  the  legal  voters  or  by  the  legislature,  as  other 
bills  are  enacted.  The  ratio  and  per  centum  of  legal  voters  herein- 
before stated  shall  be  based  upon  the  total  general  election  for  the 
Btate  office  receiving  the  highest  number  of  votes  at  such  election. 


Art.  IV,  §  1  CONSTITUTION  OF  1879.  220 

"Section  7.  The  reservation  of  the  powers  of  the  initiative  and 
referendum  in  this  article  shall  not  deprive  the  legislature  of  the 
right  to  repeal  any  laws,  propose  or  pass  any  measure,  which  may  be 
consistent  with  the  Constitution  of  the  state  and  the  Constitution  of 
the  United  States. 

"7. 

"Eckerson  v.  City  of  Des  Moines,  137  Iowa,  452,  115  N.  W.  177. 

"  'The  federal  guaranty  of  a  republican  form  of  government  applies 
only  to  states  and  does  not  affect  their  subdivisions.' 


"Hopkins  v.  Duluth,  81  Minn.  189,  83  N.  W.  536. 
"  'Providing  local  self-government  by  the  voters  directly  interested 
through  a  referendum  is  abstractly  as  well  as  concretely  more  repub- 
lican, than  through  representatives  of  the  people  in  the  legislature.' 
And  the  state  Constitution  doing  this  provides  a  republican  form  of 
government. 

"9. 
"State  V.  Sehluer,  59  Or.  18,  115  Pac.  1057. 
"This  is  the  most  recent  case  decided  in  Oregon  and  concerns  the 
construction  and  effect  of  initiative  provisions  of  the  Oregon  Consti- 
tution,  but    does   not    consider   whether   they   are    consistent   with   a 
republican  form  of  government. 

"10. 
"To  sum  up: 

"(a)  The  political  branch  of  the  federal  government  has  decided 
in  admitting  Oklahoma  to  the  Union,  that  the  initiative  and  refer- 
endum of  state-wide  application  are  not  inconsistent  with  a  repub- 
lican form  of  government,  guaranteed  by  the  federal  Constitution. 

"(b)  The  supreme  court  of  California  has  decided  that  the  initia- 
tive and  referendum  in  municipal  affairs  is  consistent  with  a  repub- 
lican form  of  government. 

"(c)  The  supreme  court  of  Oregon  has  declared  that  the  referendum 
and  initiative  of  state-wide  application  are  not  repugnant  to  a  repub- 
lican form  of  government. 

"Eespectfully  submitted, 

"LOUIS  BARTLETT." 

Additional  References. — Political  Science  Quarterly,  Vol.  XXVI, 
No.  1  (March,  1911) — "People's  Rule  in  Oregon" — Haynes. 

Journal  of  Accountancy,  Vol.  XII,  No.  2  (June,  1911) — "Facts 
About  the  Oregon  System" — Ford;  "Direct  Legislation,  etc." — 
Walker;  "Oregon  System  in  Practice" — Owen;  "Massachusetts  Wants 
the  Initiative  and  Referendum" — Johnson. 

Congressional  Record,  62d  Congress,  1st  Session  (1911).  Debates  on 
Constitution  of  Arizona. 

The  People's  Law,  or  Popular  Participation  in  Law-Making;  a 
Study  in  the  Evolution  of  Democracy  and  Direct  Law-Making.  By 
Charles  S.  Lobinger,  N.  Y.  The  MacmiUan  Co.,  1909,  pp.  xxi,  429. 
This  work  contains  a  copious  bibliography. 


221  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  1 

Appellant's  brief,  State  of  Oregon  v.  Pacific  States  Telegraph  and 
Telephone  Co.,  Sup.  Ct.  Or.,  March  term,  1908.  Full  argument  for 
invalidity  of  initiative  legislation. 

Initiative  and  Referendum:  Ex  parte  Wagner,  21  Okl.  33,  18  Ann. 
Cas.  197,  95  Pac.  435;  Norris  et  al.  v.  Cross,  25  Okl.  287,  lOo  Pae. 
1000;  State  v.  Langworthy,  55  Or.  303,  104  Pac.  424;  In  re  Initiative 
Petition  No.  2,  26  Okl.  548,  109  Pac.  823;  Haines  v.  City  of  Forest 
Grove,  54  Or.  443,  103  Pac.  775;  State  v.  Pacific  Tel.  &  Tel.  Co.,  53 
Or.  162,  99  Pac.  427;  Farrell  v.  City  of  Portland,  52  Or.  582,  98  Pac. 
145;  Southwestern  Tel.  &  Tel.  Co.  v.  City  of  Dallas  (Tex.),  131  S.  W. 
80;  State  v.  Roach,  23f)  Mo.  408,  139  Am.  St.  Rep.  639,  130  S.  W.  689; 
Brazell  v.  Zeigler,  26  Okl.  826,  110  Pac.  10-52. 

Constitutionality  of  initiative  and  referendum  provisions  in  either 
state  Constitutions  or  municipal  charters.  See  note,  11  Ann. 
Cas.  920. 

Validity  of  statute  other  than  local  option  law  which  takes  effect 

only  upon  ratification  by  voters.     See  note,  20  Ann.  Cas.  652. 

Initiative:  In  re  Initiative  State  Question,  No.  10,  26  Okl.  554,  110 

Pac.  647;   Common  Council  v.  Harrington,   160  Mich.  550,  125  N.  W. 

383. 

Initiative,  Referendum  and  Recall:  Graham  v.  Roberts,  200  Mass. 
152,  85  N.  E.  1009;  Booth  v.  McGuinness,  78  N.  J.  L.  346,  75  Atl.  455. 

Recall:  Hilzinger  v.  Gillman,  56  Wash.  228,  21  Ann.  Cas.  305,  105 
Pac.  471. 

Referendum:  Meyer  et  al.  v.  Town  of  Boonville,  162  Ind.  165,  70 
N.  E.  146;  Ray  v.  Colby  &  Tenney  et  al.,  5  Neb.  Unof.  151,  97  N.  W. 
591;  Board  of  Education  of  Sapulpa  v.  McMahan,  26  Okl.  588,  110 
Pac.  907;  State  v.  Russell,  124  Wis.  548,  102  N.  W.  1052;  North  v. 
McMahan,  26  Okl.  502,  110  Pac.  1115;  State  v,  Portland  Ry.  Light  & 
Power  Co.,  56  Or.  32,  107  Pac.  958. 

The  Referendum  as  a  "Republican  Form  of  Government." — The 
Harvard  Law  Review  has  the  following  discussion  in  its  issue  for 
December,  1910: 

"The  referendum  has  frequently  been  attacked  as  a  delegation  of 
legislative  power  and  hence  contrary  to  the  state  institutions,  which 
vest  that  power  in  the  legislature.  (For  a  discussion  of  this  phase 
of  the  problem,  see  7  Harv.  L.  Rev.  485;  16  Ibid.  218.)  Notwith- 
standing this  argument,  a  general  statute  to  take  effect  only  if  ap- 
proved by  a  majority  of  the  voters  was  upheld  in  a  recent  Wisconsin 
case.  State  ex  rel.  Van  Alstine  v.  Frear,  142  Wis.  320,  20  Ann.  Cas. 
633,  125  N.  W.  961.  (For  a  discussion  of  another  point  in  the  same 
case,  see  24  Harv.  L.  Rev.  50.) 

"In  view  of  the  comparative  ease  with  which  state  Constitutions 
are  amended,  the  relation  to  them  of  direct  legislation  is  not  of 
such  great  practical  importance  as  its  validity  under  the  Constitution 
of  the  United  States.  An  objection  to  the  referendum,  especially 
when  coupled  with  the  initiative,  which  has  frequently  been  suggested 
[see  McClain,  Constitutional  Law,  10;  56  Cent.  L.  J.  247.  But  see 
Southwestern  Telegraph  &  Telephone  Co.  v.  City  of  Dallas  (Tex.),  131 
ti.   W.  80],  but  is  not  discussed  in  the  principal  case,  is   that  direct 


Art.  IV,  §  1  CONSTITUTION  OF  1879.  222 

legislation  violates  the  clause  of  the  federal  Constitution  which  guar- 
antees to  each  state  a  republican  form  of  government.  (U.  S.  Const., 
art.  IV,  sec.  4.  The  contention  is  that  a  republic  is  a  representative 
democracy  as  distinguished  from  a  direct  or  pure  democracy.  Hence, 
it  becomes  important  to  determine  the  true  meaning  of  the  word. 

"The  Latin,  res  publica,  at  least  as  late  as  the  sixteenth  century, 
was  altogether  colorless  as  to  the  form  of  government  it  designated. 
(See  Calvin,  Institutionum  Christianae  Religionis,  lib.  4,  cap.  20.) 
The  compound  aljective  is  not  found  in  classical  or  mediaeval  Latin. 
(It  does  not  appear  in  Du  Cange,  Glossarium.)  The  noun  'republic' 
and  the  adjective  'republican'  were  used  by  Wilson  [see  Chisholm  v. 
Georgia,  2  Dall.  (U.  S.)  419,  457,  1  L.  Ed.  440,  457],  the  author  of 
the  clause  in  its  final  form  (see  2  Gilpin,  Madison  Papers,  1141),  and 
by  other  publicists  (see  1  Madison,  Letters  and  Other  Writings,  350; 
4  Ibid.  467;  10  Ford,  Writings  of  Thomas  Jefferson,  28)  of  the  time 
in  a  sense  broad  enough  to  include  direct  democracy.  The  same  thing 
is  true  of  the  use  of  the  corresponding  French  words  republique  and 
republicain  by  Montesquieu  (see  L'Esprit  des  Lois,  liv.  2,  c.  1,  2) 
and  apparently  by  Eousseau  (see  Contrat  Social,  liv.  3,  c.  4),  the 
writings  of  both  of  whom  had  a  great  influence  on  American  political 
thought  of  that  period.  The  political  party  which  advocated  keeping 
the  government  as  close  to  the  people  as  possible  was  called,  shortly 
after  the  formation  of  the  Constitution,  the  Republican  Party.  (See 
Hart,  Formation  of  the  Union,  155,  164.)  On  the  other  hand,  Madi- 
son defines  a  republic  as  'a  government  in  which  the  scheme  of  rep- 
resentation takes  place,"  and  contrasts  it  with  a  pure  democracy. 
(See  The  Federalist,  No.  10.)  Discussion  of  the  clause  under  consid- 
eration in  the  constitutional  convention  indicates  that  it  was  directed 
against  insurrection,  invasion,  and  monarchical  forms.  (See  2  Gilpin, 
Madison  Papers,  1139-1141.) 

"The  state  governments  in  existence  in  1787  must  be  taken  as  ex- 
amples of  the  republican  form,  in  the  sense  in  which  that  phrase  is 
used  in  the  Constitution.  [See  Minor  v.  Happersett,  21  Wall.  (U.  S.) 
162,  22  L.  Ed.  627.]  In  spite  of  the  fact  that  the  referendum  appears 
in  the  formation  of  some  of  the  state  Constitutions  (see  Lobingier. 
The  People's  Law,  163-187)  and  in  spite  of  the  existence  of  the  New 
England  town  government  (for  an  argument  from  this  that  the  guar- 
anty has  no  application  to  local  government,  see  Eckerson  v.  Des 
Moines,  137  Iowa,  452,  115  N.  W.  177),  so  close  a  student  of  political 
science  as  Hamilton  believed  that  the  state  governments  were  then 
wholly  representative.  (See  The  Federalist,  No.  63.)  Another  of  the 
authors  of  The  Federalist,  however,  points  out  that  the  Constitution 
does  not  forbid  the  substitution  of  other  republican  forms  for  those 
then  existing.  [See  Ibid,  No.  43,  sec.  6  (Madison).]  It  seems,  on 
the  whole,  that  'republican'  in  the  Constitution  is  ambiguous,  and  that 
a  positive  construction  that  it  had  a  meaning  so  narrow  as  to  exclude 
direct  legislation  cannot  be  supported. 

"But  even  if  'Republican  Form  of  Government'  does  mean  repre- 
sentative government,  it  might  well  be  contended  that  a  slight  tinc- 
ture of  direct  democracy  would  not  destroy  the  representative  char- 
acter of  a  state  government.  (See  State  v.  Pacific  States  Telephone 
&  Telegraph  Co.,  53  Or.   162,  99  Pac.  427;  Kadderly  v.  City  of  Port- 


223  LEGISLATIVE    DEPARTMENT.  Art.  IV,  §  2 

land,  44  Or.  118,  74  Pac.  710,  75  Pac.  222.)  Furthermore,  it  is  prob- 
able that  the  enforcement  of  the  constitutional  guaranty  is  a  political 
question  for  Congress  and  the  President  rather  than  for  the  judiciary. 
[See  Taylor  v.  Beckham,  178  U.  S.  .548,  578,  44  L.  Ed.  1187,  20  Sup. 
Ct.  Rep.  1009;  Luther  v.  Borden,  7  How.  (U.  S.)  1,  42,  12  L.  Ed. 
581. J" 

Sessions  of  legislature. 

Sec.  2.  The  sessions  of  the  legislature  shall  be  biennial, 
unless  the  governor  shall,  in  the  interim,  convene  the  legis- 
lature, by  proclamation,  in  extraordinary  session.  All  ses- 
sions, other  than  extraordinary,  shall  commence  at  12 
o'clock  M.,  on  the  first  Monday  after  the  first  day  of  Janu- 
ary next  succeeding  the  election  of  its  members,  and  shall 
continue  in  session  for  a  period  not  exceeding  thirty  days 
thereafter ;  whereupon  a  recess  of  both  houses  must  be 
taken  for  not  less  than  thirty  days.  On  the  reassembling  of 
the  legislature,  no  bill  shall  be  introduced  in  either  house 
without  the  consent  of  three-fourths  of  the  members  thereof, 
nor  shall  more  than  two  bills  be  introduced  by  any  one  mem- 
ber after  such  reassembling.  (Amendment  approved  Oc- 
tober 10,  1911.) 

[AMENDMENT  OF  1908.] 
Sec.  2.  The  sessions  of  the  legislature  shall  commence  at  12 
o'clock  M.  on  the  first  Monday  after  the  first  day  of  January  next 
succeeding  the  election  of  its  members,  and  after  the  election  held 
in  the  year  1880,  shall  be  biennial,  unless  the  governor  shall,  in 
the  interim,  convene  the  legislature  by  proclamation.  No  bill  shall 
be  introduced  in  either  house  forty  days  after  the  commencement 
of  each  session  without  the  consent  of  three-fourths  of  the  mem- 
bers thereof.     (Amendment  adapted  November  3,  1908.) 

[ORIGINAL   SECTION.] 

Sec.  2.  The  sessions  of  the  legislature  shall  commence  at  12 
o'clock  M.  on  the  first  Alonday  after  the  first  day  of  January  next 
succeeding  the  election  of  its  members,  and,  after  the  election 
held  in  the  year  eighteen  hundred  and  eighty,  shall  be  biennial, 
unless  the  governor  shall,  in  the  interim,  convene  the  legislature  by 
proclamation.  No  pay  shall  be  allowed  to  members  for  a  longer 
time  tlian  sixty  daj's,  except  for  the  first  session  after  the  adop- 
tion of  this  Constitution,  for  which  they  may  be  allowed  pay  for 
one  hundred  days.  And  no  bill  shall  be  introduced,  in  either 
house,  after  the  expiration  of  ninety  days  from  the  commencement 
of  the  first  session,  nor  after  fifty  days  after  the  commencement 
of  each  succeeding  session,  without  the  consent  of  two-thirds  of 
the   members  thereof. 


Art.  IV,  §§  3-5         CONSTITUTION  OF  1879.  224 

SESSIONS. — After  the  legislature  has  adjourned  sine  die,  the  court 
has  no  power  to  carry  into  effect  a  mandate  requiring  legislative 
action,  even  if  such  mandate  were  otherwise  proper.  (French  v.  Sen- 
ate, 146  Cal.  604,  2  Ann.  Cas.  756,  69  L.  E.  A.  556,  80  Pac.  1031.) 

The  legislature  cannot  be  convened  upon  the  mandate  of  the  judi- 
cial power.  (French  v.  Senate,  146  Cal.  604,  2  Ann.  Cas.  756,  69  L. 
R.  A.  556,  80  Pac.  1031.) 

INTRODUCTION  OF  BILLS.— After  the  fifty  days  within  which 
bills  may  be  introduced  have  expired,  a  bill  previously  introduced 
may  be  amended  in  the  same  manner  as  before,  and  several  bills  may 
be  consolidated  in  the  form  of  a  substitute.  (Hale  v.  McGettigan, 
114  Cal.  112,  45  Pac.  1049.) 

If  the  legislative  journals  are  silent  upon  the  observance  of  any 
constitutional  requirement  as  to  the  passage  of  bills,  it  cannot  be  as- 
sumed that  such  requirement  was  omitted  by  the  legislature.  (Hale 
v.  McGettigan,  114  Cal.  112,  45  Pac.  1049.) 

Election  and  term  of  assemblymen. 

Sec.  3.  Members  of  the  assembly  shall  be  elected  in  the 
year  eighteen  hundred  and  seventy-nine,  at  the  time  and 
in  the  manner  now  provided  by  law.  The  second  election 
of  members  of  the  assembly,  after  the  adoption  of  this  Con- 
stitution, shall  be  on  the  first  Tuesday  after  the  first  Mon- 
day in  November,  eighteen  hundred  and  eighty.  There- 
after, members  of  the  assembly  shall  be  chosen  biennially, 
and  their  term  of  office  shall  be  two  years ;  and  each  election 
shall  be  on  the  first  Tuesday  after  the  first  Monday  in  No- 
vember, unless  otherwise  ordered  by  the  legislature. 

Election  and  term  of  senators. 

Sec.  4.  Senators  shall  be  chosen  for  the  terra  of  four 
years,  at  the  same  time  and  places  as  members  of  the  assem- 
bly, and  no  person  shall  be  a  member  of  the  senate  or  assem- 
bly who  has  not  been  a  citizen  and  inhabitant  of  the  state 
three  years,  and  of  the  district  for  which  he  shall  be  chosen 
one  year,  next  before  his  election. 

MEMBERS. — A  person  properly  qualified  when  elected  to  the  sen- 
ate does  not  forfeit  his  office  by  the  redistricting  of  the  state,  leav- 
ing the  person  outside  of  the  district  which  he  represents.  (People 
V.  Markham,  96  Cal.  262,  31  Pac.  102.) 

Number  and  classes  of  senators. 

Sec.  5.  The  senate  shall  consist  of  forty  members,  and 
the  assembly  of  eighty  members,  to  be  elected  by  districts, 


I 


225  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  6 

numbered  as  hereinafter  provided.  The  seats  of  the  twenty- 
senators  elected  in  the  year  eighteen  hundred  and  eighty- 
two  from  the  odd-numbered  districts  shall  be  vacated  at  the 
expiration  of  the  second  year,  so  that  one-half  of  the  sena- 
tors shall  be  elected  every  two  years ;  provided,  that  all  the 
senators  elected  at  the  first  election  under  this  Constitution 
shall  hold  office  for  the  term  of  three  years. 

TERM  OF  OFFICE.— The  seats  of  the  twenty  senators  elected  in 
18S2,  from  the  districts  designated  in  the  act  of  187-4  by  odd  numbers, 
became  vacant  at  the  expiration  of  the  second  year,  and  their  suc- 
cessors were  required  to  be  elected  from  the  same  districts  for  the 
term  of  two  years.     (McPherson  v.  Bartlett,  65  Cal.  577,  4  Pac.  582.) 

Senatorial  and  legislative  districts. 

Sec.  6.  For  the  purpose  of  choosing  members  of  the  legis- 
lature, the  state  shall  be  divided  into  forty  senatorial  and 
eighty  assembly  districts,,  as  nearly  equal  in  population  as 
may  be,  and  composed  of  contiguous  territory,  to  be  called 
senatorial  and  assembly  districts.  Each  senatorial  district 
shall  choose  one  senator,  and  each  assembly  district  shall 
choose  one  member  of  assembly.  The  senatorial  districts 
shall  be  numbered  from  one  to  forty,  inclusive,  in  numeri- 
cal order,  and  the  assembly  districts  shall  be  numbered  from 
one  to  eighty,  in  the  same  order,  commencing  at  the  north- 
ern boundary  of  the  state,  and  ending  at  the  southern  bound- 
ary thereof.  In  the  formation  of  such  districts,  no  county, 
or  city  and  county,  shall  be  divided,  unless  it  contain  suffi- 
cient population  within  itself  to  form  two  or  more  districts ; 
nor  shall  a  part  of  any  county,  or  of  any  city  and  county, 
be  united  Avith  any  other  county,  or  city  and  county,  in 
forming  any  district.  The  census  taken  under  the  direction 
of  the  Congress  of  the  United  States,  in  the  year  one  thou- 
sand eight  hundred  and  eighty,  and  every  ten  years  there- 
after, shall  be  the  basis  of  fixing  and  adjusting  the  legisla- 
tive districts;  and  the  legislature  shall,  at  its  first  session 
after  each  census,  adjust  such  districts  and  reapportion  the 
representation  so  as  to  preserve  them  as  near  equal  in  popu- 
lation as  may  be.  But  in  making  such  adjustment  no  per- 
sons who  are  not  eligible  to  become  citizens  of  the  United 
States,  under  the  naturalization  laws,  shall  be  counted  as 

Constitution — 15 


Art.  IV,  §  6  CONSTITUTION  OF  1879.  226 

forming  a  part  of  the  population  of  any  district.  Until  such 
districting  as  herein  provided  for  shall  be  made,  senators 
and  assemblymen  shall  be  elected  by  the  districts  according 
to  the  apportionment  now  provided  for  by  law. 

LEGISLATIVE  DISTRICTS, — The  legislature  may  join  two  coun- 
ties in  one  assembly  district.     (People  v.  Hill,  7  Cal.  97.) 

Tbe  term  of  members  of  the  senate  is  not  affected  by  the  fact  that 
after  their  election  the  state  is  so  redistricted  that  some  counties  in 
the  newly  formed  districts  will  have  double  representation  and  others 
will  be  deprived  of  their  fair  and  equal  representation.  (People  v. 
Pendegast,  96  Cal.  289,  31  Pac.  103.) 

Where  the  first  legislature  whose  duty  it  is  to  provide  for  the 
apportionment  fails  to  do  so,  the  duty  devolves  upon  each  succeeding 
legislature  until  it  is  performed.  (People  v.  Rice,  135  N.  Y.  473,  16 
L.  B.  A.  836,  31  N.  E.  921.) 

The  legislature  cannot  be  compelled  to  make  an  apportionment. 
(In  re  State  Census,  6  S.  D.  540,  62  N.  W.  129.) 

The  apportionment  must  be  according  to  population,  but  mathe- 
matical exactness  is  not  required.  (People  v.  Thompson,  155  111.  451, 
40  N.  E.  307;  Parker  v.  State,  133  Ind.  178,  18  L.  R.  A.  567,  32  N.  E. 
836,  33  N.  E.  119;  Pro-uty  v.  Stover,  11  Kan.  235;  Board  of  Super- 
visors V.  Blacker,  92  Mich.  638,  16  L.  R.  A.  432,  52  N.  W.  951;  People 
V.  Broome,  65  Hun,  624,  20  N.  Y.  Supp.  470;  People  v.  Board  of  Alder- 
men, 14  Misc.  Rep.  105,-35  N.  Y.  Supp.  259;  People  v.  Rice,  135  N.  Y. 
473,  16  L.  R.  A.  836,  31  N.  E.  921;  Matter  of  Baird,  142  N.  Y.  523,  37 
N.  E.  619;  Matter  of  Whitney,  75  Hun,  581,  27  N.  Y.  Supp.  657; 
State  V.  Dudley,  1  Ohio  St.  437;  State  v.  Cunningham,  81  Wis.  440, 
15  L.  R.  A.  561,  51  N.  W.  724.) 

If  the  apportionment  is  made  in  the  exercise  of  a  fair  and  honest 
discretion  so  as  to  preserve,  as  nearly  as  may  be,  equality  of  repre- 
sentation, it  cannot  be  overthrown  because  not  mathematically  equal; 
but  if  the  apportionment  does  not  give  substantially  just  and  equal 
representation  to  the  people  of  each  county,  it  cannot  be  sustained. 
(Ballentine  v.  Willey,  3  Idaho,  496,  95  Am.  St.  Rep.  17,  31  Pac.  994; 
Prouty  V.  Stover,  11  Kan.  235;  People  v.  Thompson,  155  III.  451,  40 
N.  E.  307;  People  v.  Broome,  65  Hun,  624,  20  N.  Y.  Supp.  470;  People 
V.  Rice,  135  N.  Y.  473,  16  L.  R.  A.  836,  31  N.  E.  921;  Smith  v.  St. 
I>awrence  Co.,  148'  N.  Y.  187,  42  N.  E.  592;  State  v  Cunningham,  83 
Wis.  90,  35  Am.  St.  Rep.  27,  17  L.  R.  A.  145,  53  N.  W.  35.) 

While  this  section  provides  that  persons  who  are  not  eligible  to 
become  citizens  of  the  United  States  shall  not  be  counted  in  making 
the  apportionment,  an  apportionment  is  not  necessarily  invalid  be- 
cause they  are  counted.  (Matter  of  Whitney,  142  N.  Y.  531,  37  N.  E. 
621;  People  v.  Rice,  135  N.  Y.  473,  16  L.  B.  A.  836,  31  N.  E.  921; 
Matter  of  Whitney,  75  Hun,  581,  27  N.  Y.  Supp.  657.) 

This  sectien  requires  that  the  districts  shall  be  composed  of  con- 
tiguous territory,  and,  while  the  legislature  has  some  discretion  in 
this  matter,  if  it  has  been  wholly  ignored,  the  apportionment  is  void. 
(People  V.  Thompson,  155  III.  451,  40  N.  E.  307;  State  v.  Cunningham, 
83  Wis.  90,  35  Am.  St.  Rep.  27,  17  L.  R.  A.  145,  53  N.  W.  35.) 


227  LEGISLATIVE  DEPARTMENT.  Art.  IV,  §§  7,  8 

As  to  what  territory  is  "contiguous,"  see  Board  of  Supervisors  v. 
Blacker,  92  Mich.  638,  16  L.  R.  A.  432,  52  N.  W.  951;  Parker  v.  State, 
133  Ind.  178,  18  L.  R.  A.  567,  32  N.  E.  836,  33  N.  E.  119;  People  v. 
Thompson,  155  111.  451,  40  N.  E.  307. 

Under  this  section  a  county  cannot  be  divided,  unless  it  contains 
sufficient  populadon  to  make  two  or  more  districts.  (Board  of  Super- 
visors V.  Blacker,  92  Mich.  638,  16  L.  R.  A.  432,  52  N.  W.  951;  State 
V.  Cunningham,  81  Wis.  440,  15  L.  R.  A.  561,  51  N.  W.  724;  People  v. 
Board  of  Aldermen,  89  Hun,  460,  35  N.  Y.  Supp.  817.) 

Org-anization  of  legislature. 

Sec.  7.  Each  house  shall  choose  its  officers,  and  judge  of 
the  qualifications,  elections,  and  returns  of  its  members. 

QUALIFICATIONS  OF  MEMBERS.— Whether  a  senator  has  been 
regularly  elected  is  a  question  exclusively  for  the  senate.  (Opinion 
of  Justices,  12  Fla.  686.) 

The  house  is  to  judge  of  the  election  of  its  members  and  the  re- 
turns are  only  prima  facie  evidence  of  election.  (Chrisman  v.  Ander- 
son, 2  Cong.  El.  Cas.  328;  Spaulding  v.  Mead,  1  Cong.  El.  Cas.  157.) 

The  refusal  of  the  executive  of  a  state  to  grant  a  certificate  of  elec- 
tion will  not  prejudice  the  right  to  a  seat.  (Richard's  Case,  Clark  & 
H.  95;  Clement's  Case,  Cong.  El.  Cas.  1864-65,  366.) 

The  qualifications  of  members  being  fixed  by  the  Constitution,  addi- 
tional ones  cannot  be  required  by  the  legislature.  (Barney  v.  Mc- 
Creery,  1  Cong.  El.  Cas.  167;  Turney  v.  Marshall,  2  Cong.  El.  Cas. 
167;  Trumbull's  Case,  2  Cong.  El.  Cas.  618.) 

While  the  jurisdiction  conferred  by  this  provision  upon  the  legisla- 
ture is  exclusive  of  the  jurisdiction  of  the  courts,  the  canvassers  may 
be  compelled  by  mandamus  to  conduct  the  canvass  and  declare  the 
result,  thus  giving  the  person  holding  the  certificate  the  prima  facie 
right  to  the  seat.     (O'Ferrall  v.  Colby,  2  Minn.  180.) 

As  to  the  qualifications  of  members  of  inferior  legislative  bodies, 
see  People  v.  Bingham,  82  Cal.  238,  22  Pae.  1039. 

By  this  section  the  assembly  is  made  the  exclusive  judge  of  the 
qualifications  of  its  members,  and  the  law  providing  for  an  official 
ballot  cannot  be  held  to  have  changed  the  intent  of  the  people  in 
adopting  that  constitutional  provision  that  the  assembly  should  be  the 
sole  and  exclusive  judge  of  the  eligibility  of  those  whose  election  is 
properly  certified.     (Allen  v.  Lelande,  164  Cal.  56,  127  Pac.  643.) 

What  number  constitutes  a  quorum. 

Sec.  8.  A  majority  of  each  house  shall  constitute  a 
quorum  to  do  business,  but  a  smaller  number  may  adjourn 
from  day  to  day,  and  may  compel  the  attendance  of  absent 
members  in  such  manner,  and  under  such  penalties,  as  each 
house  may  provide. 

QUORUM. — A  rule  providing  that  "on  demand  of  any  member,  or 
at  the  suggestion  of  the  speaker,  the  names  of  members  sufficient  to 


Art.  IV,  §§  9, 10        CONSTITUTION  OF  1879.  228 

make  a  qnoTum  in  the  hall  of  the  house  who  do  not  vote  shall  be 
noted  by  the  clerk  and  recorded  in  the  journal,  and  reported  to  the 
speaker  with  the  names  of  the  members  voting,  and  be  counted  and 
announced  in  determining  the  presence  of  a  quorum  to  do  business," 
is  a  constitutional  mode  of  ascertaining  the  presence  of  a  quorum. 
(United  States  v.  Ballin,  144  U.  S.  1,  36  L.  Ed.  321,  12  Sup.  Ct.  Eep. 
507.) 

Rules  for  their  g-overnment — Expulsions. 

Sec.  9.  Each  house  shall  determine  the  rule  of  its  pro- 
ceeding, and  may,  with  the  concurrence  of  two-thirds  of  all 
the  members  elected,  expel  a  member. 

EXPULSION  OF  MEMBERS. — A  member  may  be  expelled  for  any 
misdemeanor  which,  though  not  punishable  by  statute,  is  inconsistent 
with  the  trust  and  duty  of  a  member.  (Smith's  Case,  1  Hall  Law  J. 
459.) 

The  power  granted  by  this  section  to  expel  a  member  for  bribery 
is  not  affected  by  the  provision  of  section  35  of  this  article,  making 
such  bribery  a  felony.  (French  v.  Senate,  146  €al.  604,  2  Ann.  Cas. 
756,  69  L.  R.  A.  556,  80  Pac.  1031.) 

A  resolution  of  expulsion  from  the  legislature  has  no  effect  upon 
the  rights  of  the  member  expelled  further  than  to  terminate  his  right 
to  sit  as.  a  member  of  the  legislative  body.  (French  v.  Senate,  146 
Cal.  604,  2  Ann.  Cas.  756,  69  L.  R.  A.  556,  80  Pac.  1031.) 

The  power  of  the  senate  to  expel  a  member  is  exclusive  and  the 
judiciary  has  no  power  to  control  the  most  arbitrary  and  unfair  action 
of  the  legislative  department  in  that  regard.  (French  v.  Senate,  146 
Cal.  604,  2  Ann.  Cas.  756,  69  L.  R.  A.  556,  80  Pac.  1031.) 

As  to  the  power  to  punish  for  contempt,  see  note  to  section  1  of 
this  article. 

Power  of  legislature  to   expel  members.     See   note,  2  Ann.  Cas. 
759. 

Each  house  to  keep  a  journal. 

Sec.  10.  Each  house  shall  keep  a  journal  of  its  proceed- 
ings, and  publish  the  same,  and  the  yeas  and  nays  of  the 
members  of  either  house,  on  any  question,  shall,  at  the  de- 
sire of  any  three  members  present,  be  entered  on  the  jour- 
nal. 

JOURNALS. — A  journal  is  a  public  record  of  which  courts  may 
take  judicial  notice.     (Brown  v.  Nash,  1  Wyo.  85.) 

The  journal  cannot  be  kept  secret  unless  the  proceedings  are  secret. 
The  holding  of  a  secret  session  by  either  house  is  in  its  discretion. 
(Nugent's  Case,  1  Am.  L.  J.  (N.  S.)  139,  Fed.  Cas.  No.  10,375.) 

The  journals  required  by  law  to  be  kept  are  a  record  of  the  pro- 
ceedings of  the  houses  of  the  legislature,  and  so  intended.  They  are, 
to   all  intents   and   purposes,   records    made   in   perpetuam   memoriam 


229  LEGISLATIVE   DEPARTMENT.      Art.  IV,  §  §  11,  12 

rei,    there    entered.     (Oakland    Pav.    Co.    v.    Hilton,    69    Cal.   479,    11 
Pae.  3.) 

The  decisions  in  the  various  states  are  conflicting  as  to  how  far,  if 
at  all,  the  journals  of  the  legislature  may  be  resorted  to  in  order  to 
determine  whether  or  not  an  act  was  properly  passed;  but  in  this 
state  it  is  held  that  the  validity  of  a  statute,  which  has  been  duly 
certified,  approved,  enrolled,  and  deposited  in  the  office  of  the  secre- 
tary of  state,  cannot  be  impeached  by  a  resort  to  the  journals  of  the 
legislature.  (Yolo  Co.  v.  Colgan,  132  Cal.  265,  84  Am.  St.  Eep.  41,  64 
Pae.  403;  People  v.  Harlan,  133  Cal.  16,  65  Pae.  9.) 

The  court  takes  judicial  notice  of  the  proceedings  had  in  the  legis- 
lature and  entered  upon  its  journals.  (French  v.  Senate,  146  Cal. 
604,  2  Ann.  Cas.  756,  69  L.  R.  A.  556,  80  Pae.  1031.) 

This  section  does  not  require  any  entry  on  the  journals  of  either 
house  respecting  the  return  to  the  legislature  of  a  bill  vetoed  by  the 
governor.     (Parkinson  v.  Johnson,  160  Cal,  756,  117  Pae.  1057.) 

Privilege  of  members. 

Sec.  11.  Members  of  the  legislature  shall,  in  all  cases, 
except  treason,  felony,  and  breach  of  the  peace,  be  privi- 
leged from  arrest,  and  shall  not  be  subject  to  any  civil 
process  during  the  session  of  the  legislature,  nor  for  fifteen 
days  next  before  the  commencement  and  after  the  termina- 
tion of  each  session. 

PRIVILEGE  FROM  ARREST.— Arrest  implies  corporate  restraint. 
(Wooley  V.  Butler,  1  Bank.  L.  T.  35.) 

This  privilege  extends  to  judicial  as  well  as  mesne  process,  and  a 
person  arrested  is  entitled  to  his  discharge  on  the  privilege  afterward 
acquired.  (Coxe  v.  McClenachan,  3  Ball.  478,  1  L.  Ed.  687;  Nones  v. 
Edsall,  1  Wall.  Jr.  189,  Fed.  Cas.  No.  10,290.) 

There  is  no  privilege  from  the  service  or  obligation  of  a  subpoena 
in  a  criminal  case.  (United  States  v.  Cooper,  4  Ball.  341,  1  L.  Ed. 
859,  Fed.  Cas.  No.  14,861.) 

Members  are  privileged  not  only  from  arrest,  but  also  from  a  ser- 
vice of  summons  or  other  civil  process  while  in  attendance  on  their 
public  duties.  (Coxe  v.  McClenachan,  3  Ball.  478,  1  L.  Ed.  687; 
Geyer  v.  Irwin,  4  Ball.  107,  1  L.  Ed.  762;  Nones  v.  Edsall,  1  Wall. 
Jr.  191,  Fed.  Cas.  No.  10,290.) 

Service   of  civil  process  upon  members   of   the  legislature.     See 
note,  2  Ann.  Cas.  615. 

Vacancies,  how  filled. 

Sec.  12.  When  vacancies  occur  in  either  house,  the  gov- 
ernor, or  the  person  exercising  the  functions  of  the  gover- 
nor, shall  issue  writs  of  election  to  fill  such  vacancies. 

VACANCIES  may  be  created  by  death,  resignation,  or  removal,  or 
by  the  acceptance  of  an  incompatible  office.     (People  v.  Carrique,  2 


Art.  IV,  §§  13-15        CONSTITUTION  OF  1879.  230 

Hill  (]Si.  Y.),  93;  Powell  v.  Wilson,  16  Tex.  60;  Biencourt  v.  Parker, 
27  Tex.  558.) 

A  resignation  sent  to  the  governor  of  a  state  is  sufficient.  (Ed- 
ward's Case,  Clark  &  H.  92;  Mercer's  Case,  Clark  &  H.  44;  Bledsoe'3 
Case,  Clark  &  H.  869.) 

The  executive  may  issue  writs  for  a  new  election  without  waiting 
to  be  informed  by  the  house  that  a  vacancy  exists.  (Mercer's  Case, 
Clark  &  H.  44.) 

Open  doors  and  secret  sessions. 

Sec.  13.  The  doors  of  each  house  shall  be  open,  except 
on  such  ocasions  as,  in  the  opinion  of  the  house,  may  require 
secrecy. 

Adjournment,  how  long  and  where  to. 

Sec.  14.  Neither  house  shall,  without  the  consent  of  the 
other,  adjourn  for  more  than  three  days,  nor  to  any  place 
other  than  that  in  which  they  may  be  sitting.  Nor  shall  the 
members  of  either  house  draw  pay  for  any  recess  or  ad- 
journment for  a  longer  time  than  three  days. 

ADJOURNMENT. — An  adjournment  of  the  house  for  more  than 
three  days  without  the  concurrence  of  the  senate  does  not  ipso  facto 
work  a  dissolution  of  the  general  assembly.  (West  Phil.  Pass.  E.  E. 
Co.  V.  Union  Pass.  E.  Co.,  4  Leg.  Gaz.  193,  29  Leg.  Int.  196.) 

Origin  and  passage  of  bills. 

Sec.  15.  No  law  shall  be  passed  except  by  bill.  Nor 
shall  any  bill  be  put  upon  its  final  passage  until  the  same, 
with  the  amendments  thereto,  shall  have  been  printed  for 
the  use  of  the  members;  nor  shall  any  bill  become  a  law 
unless  the  same  be  read  on  three  several  days  in  each  house, 
unless,  in  case  of  urgency,  two-thirds  of  the  house  where 
such  bill  may  be  pending  shall,  by  a  vote  of  yeas  and  nays, 
dispense  with  this  provision.  Any  bill  may  originate  in 
either  house,  but  may  be  amended  or  rejected  by  the  other; 
and  on  the  final  passage  of  all  bills  they  shall  be  read  at 
length,  and  the  vote  shall  be  by  yeas  and  nays  upon  each 
bill  separately,  and  shall  be  entered  on  the  journal;  and  no 
bill  shall  become  a  law  without  the  concurrence  of  a  ma- 
jority of  the  members  elected  to  each  house. 

PASSAGE  OF  BILLS. — The  word  "read"  is  used  in  this  section  in 
its  popular,  and  not  in  its  technical,  sense,  and  means  read  at  length. 


231  LEGISLATIVE    DEPARTMENT.  Art.  IV,  §  16 

and  not  read  as  is  usual  in  parliamentary  bodies.  (Weill  v.  Ken- 
field,  54  Cal.   111.) 

It  is  not  essential  to  the  validity  of  a  statute  that  it  should  affirma- 
tively appear  from  the  legislative  journals  that  every  act  required  by 
the  Constitution  to  be  done  in  the  enactment  of  a  law  has  been  done; 
nor  will  it  be  presumed,  in  the  absence  of  a  showing,  that  such  acts 
were  not  done.  (People  v.  Dunn,  80  Cal.  211,  13  Am.  St.  Rep.  118, 
22  Pac.  140;  Hale  v.  McGettigan,  114  Cal.  112,  45  Pac.  1049.) 

If  an  act  is  properly  enrolled  and  authenticated,  and  is  deposited 
with  the  secretary  of  state,  it  is  conclusive  evidence  of  the  legisla- 
tive will,  and  courts  will  not  look  into  the  journals  of  the  legislature 
to  see  whether  or  how  the  bill  passed.  (People  v.  Burt,  43  Cal.  560; 
Yolo  Co.  V.  Colgan,  132  Cal.  265,  84  Am.  St.  Rep.  81,  64  Pac.  403; 
People  V.  Harlan,  133  Cal.  16,  65  Pac.  9.) 

A  resolution  adopted  by  a  two-thirds  vote,  declaring  that  a  number 
of  specified  bills  "present  cases  of  urgency,"  and  that  the  provision 
of  the  Constitution  "requiring  that  the  bill  be  read  on  three  separate 
days  in  each  house  is  hereby  dispensed  with,"  is  sufficient,  and  it  is 
not  objectionable  on  the  ground  that  it  includes  more  than  one  bill. 
(Peo'ple  V.  Glenn  Co.,  100  Cal.  419,  38  Am.  St.  Rep.  305,  35  Pac.  302.) 

The  fact  that  several  of  the  senators  who  voted  to  declare  a  bill 
a  case  of  urgency  afterward  voted  against  the  bill  is  immaterial. 
(People  V.  Glenn  Co.,  100  Cal.  419,  38  Am.  St.  Rep.  305,  35  Pac.  302.) 
What  constitutes  final  passage  of  bill  within  constitutional  pro- 
vision requiring  vote  on  final  passage  to  be  by  yeas  and  nays. 
See  note,  16  Ann.  Cas.  977. 

Necessity  of  signature  of  presiding  officers  to  bills  passed  by  legis- 
lature.    See  note,  4  Ann.  Cas.  905. 

Legislative  journals  as  evidence  of  due  passage  of  statutes.  See 
note,  58  Am.  Dec.  574. 

Impeachment  of  act  of  legislature  by  reference  to  legislative 
journals.     See  notes,  9  Ann.  Cas.  582;  20  Ann.  Cas.  350. 

Judicial  notice  of  contents  of  legislative  journals  on  issues  as  to 
enactment  of  statute.     See  note,  20  Ann.  Cas.  449. 

Approval  and  return  of  biUs — Passage  over  veto. 

Sec.  16.  Every  bill  which  may  have  passed  the  legisla- 
ture shall,  before  it  becomes  a  law,  be  presented  to  the  gov- 
ernor. If  he  approve  it,  he  shall  sign  it;  but  if  not,  he  shall 
return  it,  with  his  objections,  to  the  house  in  which  it  origi- 
nated, which  shall  enter  such  objections  upon  the  journal 
and  proceed  to  reconsider  it.  If  after  such  reconsideration, 
it  again  pass  both  houses,  by  yeas  and  nays,  two-thirds  of 
the  members  elected  to  each  house  voting  therefor,  it  shall 
become  a  law,  notwithstanding  the  governor's  objections. 
If  any  bill  shall  not  be  returned  within  ten  days  after  it 
shall  have  been  presented  to  him  (Sundays  excepted),  the 


Art.  IV,  §  16  CONSTITUTION  OF  1879.  232 

same  shall  become  a  law  in  like  manner  as  if  he  had  signed 
it,  unless  the  legislature,  by  adjournment,  prevents  such  re- 
turn, in  which  case  it  shall  not  become  a  law,  unless  the  gov- 
ernor, within  thirty  days  after  such  adjournment  (Sundays 
excepted),  shall  sign  and  deposit  the  same  in  the  office  of 
the  secretary  of  state,  in  which  case  it  shall  become  a  law 
in  like  manner  as  if  it  had  been  signed  by  him  before  ad- 
journment. If  any  bill  presented  to  the  governor  contains 
several  items  of  appropriation  of  money,  he  may  object  to 
one  or  more  items,  while  approving  other  portions  of  the 
bill.  In  such  a  case  he  shall  append  to  the  bill  at  the  time 
of  signing  it,  a  statement  of  the  items  to  which  he  objects, 
and  the  reasons  therefor,  and  the  appropriation  so  objected 
to  shall  not  take  effect  unless  passed  over  the  governor's 
veto,  as  hereinbefore  provided.  If  the  legislature  be  in 
session,  the  governor  shall  transmit  to  the  house  in  which 
the  bill  originated  a  copy  of  such  statement,  and  the  items 
so  objected  to  shall  be  separately  reconsidered  in  the  same 
manner  as  bills  which  have  been  disapproved  by  the  gover- 
nor.    (Amendment  adopted  November  3,  1908.) 

[ORIGINAL  SECTION.] 
Sec.  16.  Every  bill  which  may  have  passed  the  legislature  shall, 
before  it  becomes  a  law,  be  presented  to  the  governor.  If  he  ap- 
prove it,  he  shall  sign  it;  but  if  not,  he  shall  return  it,  with  his 
objections,  to  the  house  in  which  it  originated,  which  shall  enter 
such  objections  upon  the  journal  and  proceed  to  reconsider  it.  If, 
after  such  reconsideration,  it  again  pass  both  houses,  by  yeas  and 
nays,  two-thirds  of  the  members  elected  to  each  house  voting 
therefor,  it  shall  become  a  law,  notwithstanding  the  governor's  ob- 
jections. If  any  bill  shall  not  be  returned  within  ten  days  after 
it  shall  have  been  presented  to  him  (Sundays  excepted),  the  same 
shall  become  a  law  in  like  manner  as  if  he  had  signed  it,  unless 
the  legislature,  by  adjournment,  prevents  such  return,  in  which 
case  it  shall  not  become  a  law,  unless  the  governor,  within  ten 
days  after  such  adjournment  (Sundays  excepted),  shall  sign  and 
deposit  the  same  in  the  office  of  the  secretary  of  state,  in  which 
case  it  shall  become  a  law  in  like  manner  as  if  it  had  been  signed 
by  him  before  adjournment.  If  any  bill  presented  to  the  gov- 
ernor contains  several  items  of  appropriation  of  money,  he  may 
object  to  one  or  more  items,  while  approving  other  portions  of  the 
bill.  In  such  case  he  shall  append  to  the  bill,  at  the  time  of  sign- 
ing it,  a  statement  of  the  items  to  which  he  objects,  and  the 
reasons  therefor,  and  the  appropriation  so  objected  to  shall  not 
take  effect  unless  passed  over  the  governor's  veto,  as  hereinbefore 
provided.     If    the    legislature    be    in    session,    the    governor    shall 


233  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  17 

transmit  to  the  house  in  which  the  bill  originated  a  copy  of  such 
statement,  and  the  items  so  objected  to  shall  be  separately  recon- 
sidered in  the  same  manner  as  bills  which  have  been  disapproved 
by  the  governor. 

APPROVAL  BY  THE  GOVERNOR.— The  day  upon  which  the  bill 
is  presented  to  the  governor  should  be  excluded.  (Price  v.  Whitman, 
8  Cal.  412;  Iron  Mountain  Co.  v.  Haight,  39  Cal.  540.) 

In  People  v.  Whitman,  6  Cal.  659,  it  was  held  that  only  where  the 
last  day  fell  upon  a  Sunday  should  Sundays  be  excepted  in  making 
the  computation;  but  this  case  was  overruled  in  the  case  of  Price  v. 
vVhitman,  8  Cal.  412,  it  having  been  decided  upon  an  error  in  the 
printed  copy  of  the  Constitution,  the  word  "Sundays"  being  used  in 
the  singular. 

A  law  is  not  finally  passed  until  it  is  approved  by  the  governor  and 
transmitted  by  him  to  the  secretary  of  state.  (Davis  v.  Whidden, 
117  Cal.   618,  49  Pac.  766.) 

Where  inconsistent  acts  are  approved  on  the  same  day,  it  is  to  be 
presumed  that  they  were  published  in  the  chronological  order  of  their 
approval;  but  the  court  will  take  judicial  notice  ol  the  time  of  the  ap- 
proval of  each  act,  and  may  resort  to  the  office  of  the  secretary  of 
state  to  learn  the  exact  time  thereof.  (Davis  v.  Whidden,  117  Cal. 
618,  49  Pac.  766.) 

Where  an  act  purports  to  have  been  approved  by  the  governor  on 
the  last  day  of  the  session,  parol  evidence  is  admissible  to  show  that 
in  fact  it  was  approved  on  the  succeeding  day.  (Fowler  v.  Peirce,  2 
Cal.  165.) 

Where  a  statute  is  declared  to  take  effect  from  and  after  its  pas- 
sage, it  takes  effect  at  the  very  moment  of  its  approval  by  the  gov- 
ernor.    (People  V.  Clark,  1  Cal.  406.) 

An  act  approved  by  the  governor  after  the  adjournment  of  the 
legislature  was  void  under  the  former  Constitution.  (Fowler  v. 
Peirce,  2  Cal.  165.) 

When  exercising  the  powers  of  approving  or  disapproving  bills,  the 
governor  is  a  special  agent  with  limited  powers,  and  can  act  only  in 
the  specified  mode  and  can  exercise  only  the  granted  powers.  (Lu- 
kens  V.  Nye,  156  Cal.  498,  20  Ann.  Cas.  158,  36  L.  R.  A.  (N.  S.)  244, 
105  Pac.  593.) 

Only  the  objections  of  the  governor  to  a  bill  he  has  vetoed  and  re- 
turned to  the  legislature  are  required  to  be  entered  upon  the  journal 
of  each  house,  and  the  time  of  the  return  of  the  bill  need  not  be  en- 
tered.    (Parkinson  v.  Johnson,  160  Cal.  756,  117  Pac.  1057.) 

Power  of  executive   to  approve  bill  in   part  only.     See  note,   20 

Ann.  Cas.  162. 
Computation    of   time    allowed    executive    to    sign    or    reject   bill 

passed  by  legislature.     See  note,  6  Ann.  Cas.  717. 
Eight   of  executive   to  withdraw   approval  of  bill.     See  note,   13 
Ann.  Cas.  230. 

Impeachments,  presentment  and  trial  of. 

Sec.  17.  The  assembly  shall  have  the  sole  power  of  im- 
peachment, and  all  impeachments  shall  be  tried  by  the  sen- 


Art.  IV,  §  18  CONSTITUTION  OF  1879.  231: 

ate.  "When  sitting  for  that  purpose,  the  senators  shall  be 
upon  oath  or  affirmation,  and  no  person  shall  be  convicted 
without  the  concurrence  of  two-thirds  of  the  members 
elected. 

IMPEACHMENT. — A  member  of  the  house  voting  for  the  prosecu- 
tion of  an  impeachment  is  not  thereby  rendered  disqualified,  if  subse- 
quently elected  to  the  senate,  from  sitting  on  a  trial  thereccf.  (Addi- 
son's Trial,  21-28;  Porter's  Trial,  53.) 

All  the  functions  of  the  governor  are  entirely  suspended  during 
his  trial.      (Opinion  of  Judges,  3  Neb.  463.) 

For  an  impeachment  to  be  effectual,  the  articles  must  be  presented 
to  the  senate,  and  a  constitutional  quorum  of  the  entire  membership 
must  receive  it.     (Opinion  of  Justices,  12  Fla.  653.) 

What  officers  liable  to  impeachment — Judgment  on. 

Sec.  18.  The  governor,  lieutenant-governor,  secretary  of 
state,  controller,  treasurer,  attorney  general,  surveyor-gen- 
eral, chief  justice  and  associate  justices  of  the  supreme 
court,  judges  of  the  district  court  of  appeal,  and  judges  of 
the  superior  courts,  shall  be  liable  to  impeachment  for  any 
misdemeanor  in  office ;  but  judgment  in  such  cases  shall  ex- 
tend only  to  removal  from  office,  and  disqualification  to  hold 
any  office  of  honor,  trust,  or  profit  under  the  state ;  but  the 
party  convicted  or  acquitted  shall  nevertheless  be  liable  to 
indictment,  trial,  and  punishment  according  to  law.  All 
other  civil  officers  shall  be  tried  for  misdemeanor  in  office  in 
such  manner  as  the  legislature  may  provide.  (Amendment 
approved  October  10,  1911.) 

[ORIGINAL  SECTION.] 
Sec.   18.     The   governor,  lieutenant-governor,   secretary  of  state, 
controller,  treasurer,  attorney  general,    surveyor-general,  chief  jus- 
tice and  associate  justices  of  the  supreme  court,  and  judges  of  the 
superior    courts,    shall    be   liable    to    impeachment    for    any    misde- 
meanor in  office;  but  judgment  in  such  cases  shall  extend  only  to 
removal  from  office,  and  disqualification  to  hold  any  office  of  honor, 
trust,   or   profit   under   the   state;    but   the  party   convicted   or   ac- 
quitted shall  nevertheless  be  liable  to  indictment,  trial,  and  pun- 
ishment according  to  law.     All  other  civil  officers  shall  be  tried  for 
misdemeanor  in  office  in  such  manner  as  the  legislature  may  pro- 
vide. 
REMOVAL   OF   OFFICERS.— This   section   gives  to  the  legislature 
power   to   provide    for   the    removal    of    officers   without   a   jury   trial. 
(Woods  V.  Varnum,  85  Gal.  639,  24  Pac.  843.) 

The  supreme  court  has  no  jurisdiction  of  an  appeal  from  a  judg- 
ment in  a  proceeding  under  section  772  of  the  Penal  Code  for  the  re- 


235  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  13 

moval  of  public  officers,  the  legislature  not  having  provided  for  such 
jurisdiction.     (In  re  Curtis,  108  Cal.  661,  41  Pac.  793.) 

The  act  of  1853  entitled  "An  act  to  prevent  extortion  in  office  and 
to  enforce  official  duty,"  held  valid.     (Matter  of  Marks,  45  Cal.  199.) 

While  the  Constitution  has  provided  for  the  impeachment  of  cer- 
tain officers,  it  has  left  all  other  civil  officers  to  be  tried  for  misde- 
meanors in  such  manner  as  the  legislature  may  provide.  (Matter  of 
Marks,  45  Cal.  199.) 

A  presiding  judge  is  liable  to  impeachment  for  preventing  an  asso- 
ciate judge  from  delivering  his  opinion  to  a  grand  or  petit  jury  upon 
a  matter  before  the  court.  (Addison's  Trial,  114,  151;  Commonwealth 
V.  Addison,  4  Dall.  225,  1  L.  Ed.  810;  Porter's  Trial,  61.) 

A  public  officer  who  refuses  to  enforce  the  law  forbidding  gambling 
is  guilty  of  "misdemeanor  in  office."  (Coffey  v.  Superior  Court,  147 
Cal.  525,  82  Pac.  75.) 

Sections  758  and  following  of  the  Penal  Code  do  not  provide  for 
the  removal  of  public  officers  by  indictment,  and  the  people  have  no 
appeal  from  an  order  sustaining  a  demurrer  to  the  accusation.  (Mat- 
ter of  Burleigh,  145  Cal.  35,  78  Pac.  242.) 

The  legislature  had  plenary  power  to  pass  sections  758  et  seq.  of 
the  Penal  Code  dealing  with  the  removal  of  civil  officers  otherwise 
than  by  impeachment.  (Matter  of  Accusation  of  Shepard,  161  Cal. 
171,  118  Pac.  513.) 

This  section  does  not  authorize  the  legislature  to  enlarge  the  ap- 
pellate jurisdiction  of  the  higher  courts  beyond  the  limits  expressly 
laid  down  in  another  part  of  the  Constitution,  and  section  770  of  the 
Penal  Code  giving  an  apppeal  to  the  supreme  court  from  a  judgment 
removing  a  public  officer  cannot  be  sustained  under  it.  (People  v. 
McKamy,  168  Cal.  531,  143  Pac.  752.) 

Member  ineligible  to  oflEice  created  during'  the  term. 

Sec.  19.  No  senator  or  member  of  assembly  shall,  during 
the  term  for  which  he  shall  have  been  elected,  be  appointed 
to  any  civil  office  of  profit  under  this  state  Avhich  shall  have 
been  created,  or  the  emoluments  of  which  have  been  in- 
creased, during  such  term,  except  such  offices  as  may  be 
filled  by  election  by  the  people. 

OFFICES. — This  section  does  not  inhibit  the  appointment  of  a  mem- 
ber of  tlie  legislature  to  the  office  of  harbor  commissioner,  which  office 
was  not  created,  nor  the  emoluments  thereof  increased,  during  his 
term  of  office — the  method  of  filling,  the  duties  and  functions  of  tho 
ofliee  alone  being  changed.     (People  v.  Burns,  53  Cal.  660.) 

This  section  does  not  disqualify  a  member  of  the  legislature  from 
holding  an  office,  the  emoluments  of  which  are  increased  during  his 
legislative  term,  but  after  his  election  to  such  office.  (State  v.  Boyd, 
21  Wis.  208.) 


Art.  IV,  §  20  CONSTITUTION  OF  1879.  23G 

Who  ineligible  to  office  under  state  government — Proviso. 

Sec.  20.  No  person  holding  any  lucrative  office  under  the 
United  States,  or  any  other  power,  shall  be  eligible  to  any 
civil  office  of  profit  under  this  state ;  provided,  that  officers 
in  the  militia,  who  receive  no  annual  salary,  local  officers, 
or  postmasters  whose  compensation  does  not  exceed  five 
hundred  dollars  per  annum,  shall  not  be  deemed  to  hold 
lucrative  offices. 

OFFICE  OF  PROFIT. — The  words  "lucrative  office"  in  the  proviso 
of  this  section  refer  solely  to  the  office  under  the  United  States;  and 
if  the  salary  of  that  office  exceeds  five  hundred  dollars  per  annum, 
its  incumbent  cannot  hold  any  civil  office  of  profit  under  the  state, 
notwithstanding  the  profit  of  the  state  office  is  less  than  five  hundred 
dollars  per  annum.     (People  v.  Leonard,  73  Cal.  230,  14  Pac.  853.) 

The  federal  office  of  surveyor-general  is  a  "lucrative  office,"  and  the 
office  of  controller  of  state  an  "office  of  profit."  (People  v.  Whitman. 
10  Cal.   38.) 

The  office  of  school  superintendent  of  a  county  is  a  civil  office. 
(Crawford  v.  Dunbar,  52  Cal.  36.) 

The  office  of  inspector  of  customs  in  a  collection  district,  to  which 
there  is  annexed  a  salary  of  one  thousand  dollars  per  annum,  is  a  lu- 
crative office.     (Crawford  v.  Dunbar,  52  Cal.  36.) 

A  retired  army  officer  does  not  hold  a  lucrative  "office"  within  the 
meaning  of  this  section.     (Reed  v.  Schon,  2  Cal.  App.  55,  83  Pac.  77.) 

To  constitute  a  holding,  the  officer  must  be  appointed  and  qualify 
by  giving  a  bond  and  taking  the  oath  of  office;  and  one  who  has  not 
so  qualified  under  a  federal  appointment  is  eligible  to  office  in  this 
state.     (People  v.  Whitman,  10  Cal.  38.) 

This  section  applies  to  incumbents  de  facto  of  a  lucrative  office. 
(Crawford  v.  Dunbar,  52  Cal.  36.) 

This  section  refers  to  the  power  to  hold  as  well  as  to  be  elected 
to  office;  consequently,  a  person  duly  eligible  and  elected  to  a  civil 
office  of  profit  under  the  state  cannot  hold  the  oiSce  after  he  has  ac- 
cepted a  lucrative  federal  office.  (People  v.  Leonard,  73  Cal.  230,  14 
Pac.  853.) 

"Eligible"  means  capable  of  being  chosen — the  subject  of  selection 
or  choice;  and  "compensation"  means  the  income  of  the  office,  not  its 
profits.     (Searcy  v.  Grow,  15  Cal.  117.) 

If  a  member  at  the  time  of  his  election  hold  a  disqualifying  office, 
it  is  sufficient  that  he  qualify  himself  by  a  resignation  of  it  before  he 
is  sworn  in.     (Commonwealth  v.  Pyle,  18  Pa.  519.) 

The  appointment  to  a  second  incompatible  office  is  not  absolutely 
void,  but  the  first  office  is  ipso  facto  vacated.  (People  v.  Carrique, 
2  Hill  (N.  Y.),  93;  Biencourt  v.  Parker,  27  Tex.  558.) 

A  person  holding  two  compatible  offices  is  not  precluded  from  hold- 
ing the  salaries  of  both.  (Converse  v.  United  States,  21  How.  (U.  S.) 
463,  16  L.  Ed.  192;  Brown's  Case,  9  Op.  Atty.  Gen.  508.) 


237  LEGISLATIVE   DEPARTMENT.      Art,  IV,  §§  21,  22 

Embezzlement  or  defalcation — Penalty  for. 

Sec.  21.  No  person  convicted  of  the  embezzlement  or  de- 
falcation of  the  public  funds  of  the  United  States,  or  of  any 
state,  or  of  any  county  or  municipality  therein,  shall  ever 
be  eligible  to  any  office  of  honor,  trust,  or  profit  under  this 
state,  and  the  legislature  shall  provide,  by  law,  for  the 
punishment  of  embezzlement  or  defalcation  as  a  felony. 

Public  moneys  and  accounts — Statement  of  receipts  and 
expenditures — Panama-Pacific  International  Exposition. 

Sec.  22.  No  money  shall  be  drawn  from  the  treasury  but 
in  consequence  of  appropriations  made  by  law,  and  upon 
warrants  duly  drawn  thereon  by  the  controller;  and  no 
money  shall  ever  be  appropriated  or  drawn  from  the  state 
treasury  for  the  purpose  or  benefit  of  any  corporation,  asso- 
ciation, asylum,  hospital,  or  any  other  institution  not  under 
the  exclusive  management  and  control  of  the  state  as  a  state 
institution,  nor  shall  any  grant  or  donation  of  property  ever 
be  made  thereto  by  the  state ;  provided,  that  notwithstand- 
ing anything  contained  in  this  or  any  other  section  of  this 
Constitution,  the  legislature  shall  have  the  poAver  to  grant 
aid  to  the  institutions  conducted  for  the  support  and  mainte- 
nance of  minor  orphans,  or  half  orphans,  or  abandoned  chil- 
dren, or  aged  persons  in  indigent  circumstances — such  aid 
to  be  granted  by  a  uniform  rule,  and  proportioned  to  the 
number  of  inmates  of  such  respective  institutions ;  provided, 
further,  that  the  state  shall  have  at  any  time  the  right  to 
inquire  into  the  management  of  such  institution ;  provided, 
further,  that  whenever  any  county,  or  city  and  county,  or 
city,  or  toAvn,  shall  provide  for  the  support  of  minor  or- 
phans, or  half  orphans,  or  abandoned  children,  or  aged 
persons  in  indigent  circumstances,  such  county,  city  and 
county,  city,  or  town  shall  be  entitled  to  receive  the  same 
pro  rata  appropriations  as  may  be  granted  to  such  institu- 
tions under  church  or  other  control.  An  accurate  statement 
of  the  receipts  and  expenditures  of  public  moneys  shall  be 
attached  to  and  published  with  the  laws  at  every  regular 
session  of  the  legislature. 

Provided,  hoAvever,  that  for  the  purpose  of  raising  five 
million  dollars  ($5,000,000),  to  be  used  in  establishing,  main- 


Art.  IV,  §  22  CONSTITUTION  OF  1879.  238 

taining.  and  supporting  in  the  city  and  county  of  San  Fran- 
cisco, state  of  California,  an  exposition  in  commemoration 
of  the  completion  of  the  Panama  canal,  to  be  known  as  the 
Panama-Pacific  International  Exposition,  the  state  board  of 
equalization  shall,  for  the  fiscal  year  beginning  July  1,  1911, 
and  for  each  fiscal  year  thereafter,  to  and  including  the  fis- 
cal year  beginning  July  1,  1914,  fix,  establish,  and  levy  such 
an  ad  valorem  rate  of  taxation,  as  when  levied  upon  all  the 
taxable  property  in  the  state,  after  making  due  allowance 
for  delinquency,  shall  produce  for  each  of  such  fiscal  years 
a  sum  of  one  million  two  hundred  and  fifty  thousand  dollars 
($1,250,000).  The  said  taxes  shall  be  levied,  assessed,  and 
collected  upon  every  kind  and  character  of  property  in  the 
state  of  California  not  exempt  from  taxation  under  the  laAv, 
and  subject  to  taxation  on  the  1st  day  of  July,  1910,  and  in 
the  same  manner,  and  by  the  same  method,  as  other  state 
taxes  were  levied,  assessed,  and  collected  under  the  law,  as 
the  same  existed  on  the  1st  day  of  July,  1910.  The  state 
board  of  equalization  shall  each  year,  at  the  time  it  deter- 
mines the  amount  or  revenue  required  for  other  state  pur- 
poses, determine,  fix,  and  include  the  rate  of  tax  necessary 
to  raise  the  revenue  herein  provided  for. 

There  is  hereby  created  in  the  state  treasury  a  fund  to 
be  known  as  the  Panama-Pacific  International  Exposition 
fund,  and  all  moneys  collected  pursuant  to  this  provision, 
after  deducting  the  proportionate  share  of  the  expense  for 
the  collection  of  the  same,  shall  be  paid  into  the  state  treas- 
ury, and  credited  to  such  fund.  All  moneys  so  paid  into 
such  fund  are  hereby  appropriated,  without  reference  to 
fiscal  years,  for  the  use,  establishment,  maintenance,  and 
support  of  said  Panama-Pacific  International  Exposition. 
No  tax,  license  fee,  or  charge  of  any  kind  or  character  shall 
ever  be  levied  or  assessed  or  charged  against  any  property 
of  said  Panama-Pacific  International  Exposition,  or  against 
any  property  used  as  exhibit  therein,  while  being  used  or 
exhibited  in  connection  thercAvith. 

There  is  hereby  created  a  commission  to  be  known  as  the 
Panama-Pacific  International  Exposition  Commission  of  the 
state  of  California,  which  shall  consist  of  the  governor  of 


239  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  22 

said  state  and  four  other  members  to  be  appointed  by  the 
governor,  by  and  with  the  advice  and  consent  of  the  senate 
of  said  state.  The  governor  shall  have  the  power  to  fill  all 
vacancies  occurring  at  any  time  in  said  commission.  The 
members  of  said  commission  shall  receive  no  compensation 
and  shall  hold  office  until  such  exposition  shall  have  been 
closed  and  its  affairs  settled.  Said  four  members  of  said 
commissioii  shall  be  selected  from  different  sections  of  the 
state,  and  the  appointment  thereof  shall  be  made  by  the 
governor  of  the  state  during  the  month  of  February,  1911. 
The  commission  hereby  created  shall  have  the  exclusive 
charge  and  control  of  all  moneys  paid  into  the  Panama-Pa- 
cific International  Exposition  fund ;  and  provided  further 
that  the  legislature  shall  pass  all  laws  necessary  to  carry 
out  the  provisions  of  this  act,  including  the  times  and  the 
manner  in  which  and  the  terms  and  conditions  upon  which 
money  shall  be  drawn  from  the  state  treasury  by  said  com- 
mission; where  contracts  and  vouchers  shall  be  filed;  to 
whom  and  how  often  reports  shall  be  made ;  what  disposi- 
tion shall  be  made  of  any  sum  left  unexpended  or  received 
from  the  sale  of  any  property  or  buildings  purchased  or 
constructed  by  said  connnission  for  the  use  of  said  exposi- 
tion, or  of  any  disposition  of  any  building  or  improvement 
constructed  by  said  commission  out  of  said  fund,  and  to  pro- 
vide for  the  transfer  to  the  general  fund  of  the  state  of 
California  of  any  portion  of  said  Panama-Pacific  Interna- 
tional Exposition  fund  unused. 

The  commission  herein  created  is  authorized  and  directed 
to  make  such  proper  contracts  with  the  Panama-Pacific  In- 
ternational Exposition  Company,  a  corporation  organized 
under  the  laws  of  the  state  of  California  on  the  22d  day  of 
March,  1910,  as  will  entitle  the  state  of  California  to  share 
proportionatel}^  with  the  contributors  to  the  said  Panama- 
Pacific  International  Exposition  in  the  returns  from  the 
holding  of  said  exposition  at  the  city  and  county  of  San 
Francisco.      (Amendment  adopted  November  8,  1910.) 

[ORIGINAL  SECTION.] 

Sec.   22.     No   money   shall   be   drawn   from   the  treasury  but   in 
consequence   of   appropriations   made   by   law,   and  upon   warrants 


Art.  IV,  §  22  CONSTITUTION  OF  1879.  240 

duly  drawn  thereon  by  the  controller;  and  no  money  shall  ever  be 
appropriated  or  drawn  from  the  state  treasury  for  the  use  or 
benefit  of  any  corporation,  association,  asylum,  hospital,  or  any 
other  institution  not  under  the  exclusive  management  and  control 
of  the  state  as  a  state  institution,  nor  shall  any  grant  or  donation 
of  property  ever  be  made  thereto  by  the  state;  provided,  that  not- 
withstanding anything  contained  in  this  or  any  other  section  of 
this  Constitution,  the  legislature  shall  have  the  power  to  grant  aid 
to  institutions  conducted  for  the  support  and  maintenance  of 
minor  orphans,  or  half  orphans,  or  abandoned  children,  or  aged 
persons  in  indigent  circumstances — such  aid  to  be  granted  by  a 
uniform  rule,  and  proportioned  to  the  number  of  inmates  of  such 
respective  institutions;  provided  further,  that  the  state  shall  have, 
at  any  time,  the  righ4;  to  inquire  into  the  management  of  such 
institutions;  provided  further,  that  whenever  any  county,  or  city 
and  county,  or  city,  or  town  shall  provide  for  the  support  of  minor 
orphans,  or  half  orphans,  or  abandoned  children,  or  aged  persons 
In  indigent  circumstances,  such  county,  city  and  county,  city,  or 
town  shall  be  entitled  to  receive  the  same  pro  rata  appropriations 
as  may  be  granted  to  such  institutions  under  church  or  other  con- 
trol. An  accurate  statement  of  the  receipts  and  expenditures  of 
public  moneys  shall  be  attached  to  and  published  with  the  laws 
at  every  regular  session  of  the  legislature. 

APPROPRIATIONS. — No  money  can  be  drawn  from  the  treasury 
but  in  consequence  of  appropriations  made  by  law.  (Baggett  v.  Dunn, 
&9  Cal.  75,  10  Pac.  125.) 

To  an  appropriation  nothing  more  is  requisite  than  a  designation 
of  the  amount  and  fund  out  of  which  it  shall  be  paid.  It  is  not  es- 
sential to  its  validity  that  funds  to  meet  the  same  shall  be  at  the 
time  in  the  treasury.     (People  v.  Brooks,  16  Cal.  II.) 

This  provision  is  designed  only  to  secure  to  the  legislative  depart- 
ment the  exclusive  power  of  deciding  to  what  purpose  the  public 
funds  shall  be  devoted  in  each  fiscal  year,  and  no  particular  form  of 
legislative  words  is  required  to  make  an  appropriation  valid.  (Hum- 
bert V.  Dunn,  84  Cal.  57,  24  Pac.  111.) 

This  provision  does  not  prohibit  the  legislature  from  appropriating 
its  funds  in  time  of  war  to  aid  a  corporation  in  the  construction  of 
a  railroad  to  be  used  by  the  state  for  military  purposes.  (People  v. 
Pacheco,  27  Cal.  175.) 

There  is  no  restriction  as  to  the  time  for  which  appropriations  may 
be  made.     (People  v.  Pacheco,  27  Cal.  175.) 

The  provision  of  this  section  giving  counties,  cities,  and  towns  the 
same  pro  rata  amounts  granted  by  the  legislature  to  private  institu- 
tions is  self-executing,  and  where  the  legislature  grants  such  aid  to 
private  institutions,  such  counties,  cities,  and  towns  become  entitled 
to  the  same  aid.  (Yolo  Co.  v.  Dunn,  77  Cal.  133,  19  Pac.  262;  San 
Francisco  v.  Dunn,  69  Cal.  73,  10  Pac.  191.) 

An  act  appropriating  three  hundred  thousand  dollars  to  meet  the 
expenses  of  erecting  buildings  and  maintaining  an  exhibit  of  the  pro- 
ducts of  the  state  at  the  World's  Fair  at  Chicago,  and  providing  that 
the  appropriation  should  be  expended  under  the  exclusive  charge  of 


241  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  22 

a  commission  appointed  by  the  governor,  is  not  in  conflict  with  this 
provision.  (Daggett  v.  Colgan,  92  Cal.  53,  27  Am.  St.  Rep.  95,  14  L. 
E.  A.  474,  28  Pac.  51.) 

An  act  creating  an  office  and  providing  that  the  officer  "sliall  re- 
ceive a  salary  of  two  thousand  four  hundred  dollars  per  annum,  pay- 
able monthly,  ...  to  be  paid  out  of  any  money  in  the  state  treasury 
not  otherwise  appropriated,"  is  sufficient  to  show  an  intention  to  ap- 
propriate such  sum.     (Humbert  v.  Dunn,  84  Cal.  57,  24  Pac.  111.) 

An  act  providing  for  the  commitment  of  minor  criminals  to  non- 
sectarian  charitable  corporations,  the  expense  of  maintenance  to  be 
paid  by  the  county,  is  not  in  violation  of  this  section,  since  it  only 
applies  to  the  state  treasury.  (Boys'  &  Girls'  Aid  Soe.  v.  Eeis,  71  Cal. 
627,  12  Pac.  796.) 

A  law  providing  for  the  payment  of  a  salary  "out  of  any  money 
in  the  general  fund  not  otherwise  appropriated,"  only  applies  to  the 
money  subject  to  appropriation  by  that  legislature  and  not  to  some 
subsequent  legislature.     (Baggett  v.  Dunn,  69  Cal.  75,  10  Pac.  125.) 

An  act  attempting  retroactively  to  exempt  resident  nephews  and 
nieces  from  the  payment  of  unpaid  taxes  upon  collateral  inheritances 
is  in  violation  of  this  section.  (Estate  of  Stanford,  126  Cal.  112,  45 
L.  R.  A.  788,  54  Pac.  259,  58  Pac.  462.) 

The  act  of  1835,  providing  a  fund  for  the  indigent  sick,  has  no  ap- 
plication to  a  fund  which  comes  to  a  county  by  operation  of  this  sec- 
tion.    (Power  V.  May,  123  Cal.  147,  55  Pac.  796.) 

The  act  establishing  the  state  agricultural  society  made  it  a  state 
institution,  and  appropriation  for  it  is  not  obnoxious  to  this  provi- 
sion.    (Melvin  v.  State,  121  Cal.  16,  53  Pac.  416.) 

The  act  of  1891,  fixing  a  bounty  on  coyote  scalps,  did  not  make  a 
specific  appropriation  out  of  the  general  fund  for  the  payment  of  such 
bounties.  (Ingram  v.  Colgan,  106  Cal.  113,  46  Am.  St.  Rep.  221,  28 
L.  R.  A.  187,  38  Pac.  315,  39  Pac.  437.) 

An  act  requiring  the  tax  collector  to  pay  a  part  of  the  fees  allowed 
him  by  law  into  the  county  treasury  does  not  violate  this  section — 
first,  because  the  money  had  never  been  in  the  state  treasury,  and, 
second,  because  such  act  amounts  to  an  appropriation.  (Ream  v. 
Siskiyou  Co.,  36  Cal.  620.) 

The  legislature  has  no  power  to  appropriate  money  to  agricultural 
societies  not  under  the  exclusive  control  of  the  state.  (People  v.  San 
Joaquin  Valley  Agr.  Assn.,  151  Cal.  797,  91  Pac.  740.) 

The  Constitution  does  not  expressly  prohibit  the  legislature  from 
converting  a  private  corporation  into  a  state  institution  and  placing 
it  under  state  control,  provided  the  purposes  sought  are  within  the 
general  legislative  power,  or  under  some  duty  or  function  of  govern- 
ment.    (Board  v.  Nye,  8  Cal.  App.  527,  97  Pac.  208.) 

An  act  appropriating  one  hundred  thousand  dollars  for  the  support 
and  maintenance  of  a  mining  bureau  is  not  unconstitutional  because 
it  fails  to  state  specifically  on  what  fund  the  warrant  is  to  be  drawn, 
or  that  the  money  is  appropriated  out  of  any  moneys  in  the  treasury 
not  otherwise  appropriated.     (ProU  v.  Dunn,  80  Cal.  220,  22  Pac.  143.) 

Section  2283  of  the  Political  Code,  as  amended  in  1913,  appropri- 
ating money  to  institutions  and  municipal  corporations  for  the  sup- 
port of  orphans  or  abandoned  children,  is  express)}'  authorized  by  this 
Constitution — 16 


Art.  IV,  §  23  CONSTITUTION  OF  1879.  242 

section.     (Sacramento    Orphanage    etc.    Home    v.    Chambers,    25    Cal. 
App.  536,  144  Pac.  317.) 

Section  3669  of  the  Political  Code,  directing  the  state  controller,  in 
the  event  of  a  final  judgment  being  recovered  against  the  state 
treasurer  for  the  amount  of  taxes  illegally  assessed  by  the  state 
board  of  equalization  and  collected  by  the  treasurer,  to  draw  his  war- 
rant therefor  upon  the  treasurer  and  directing  the  latter  to  pay  it, 
is  in  violation  of  this  section,  forbidding  the  drawing  of  money  from 
the  treasury  "but  in  consequence  of  appropriations  made  by  law." 
(Westinghouse  Electric  Co.  v.  Chambers,  169  Cal.  131,  145  Pac.  1025.) 
■  If  section  270d  of  the  Penal  Code  should  be  decided  unconstitu- 
tional under  this  section,  the  constitutionality  of  section  270  would 
be  unaffected  by  it,  since  it  is  wholly  independent  of  section  270d. 
(In  re  Mitchell,  19  Cal.   App.  567,   126  Pac. '856.) 

Compensation  of  members  and  attaches. 

Sec.  23.  The  members  of  the  legislature  shall  receive  for 
their  services,  the  sum  of  one  thousand  dollars  each  for  each 
regular  session,  to  be  paid  at  such  times  during  the  session 
as  may  be  provided  by  law,  and  the  sum  of  ten  dollars  each, 
for  each  day  while  in  attendance  at  a  special  or  extraordi- 
nary session,  for  a  number  of  days  not  exceeding  thirty ; 
and  mileage  to  be  fixed  by  law,  all  paid  out  of  the  state 
treasury ;  such  mileage  shall  not  exceed  ten  cents  per  mile ; 
and  each  member  shall  be  allowed  contingent  expenses  not 
exceeding  tv/enty-five  dollars  per  member  for  each  regular 
biennial  session.  The  legislature  may  also  provide  for  ad- 
ditional help ;  but  in  no  case  shall  the  total  expense  for  offi- 
cers, employees  and  attaches  exceed  the  sum  of  five  hundred 
dollars  per  day  for  either  house,  at  any  regular  or  biennial 
session,  nor  the  sum  of  two  hundred  dollars  per  day  for 
either  house,  at  any  special  or  extraordinary  session,  nor 
shall  the  pay  of  any  officer,  employee  or  attache  be  increased 
after  he  is  elected  or  appointed.  (Amendment  adopted  No- 
vember 3,  1908.) 

[OEIGINAL  SECTION.] 
Sec.  23.  The  members  of  the  legislature  shall  receive  for  their 
services  a  per  diem  and  mileage,  to  be  fixed  by  law,  and  paid  out 
of  the  public  treasury;  such  per  diem  shall  not  exceed  eight  dol- 
lars, and  such  mileage  shall  not  exceed  ten  cents  per  mile,  and 
for  contingent  expenses  not  exceeding  twenty-five  dollars  for  each 
session.  No  increase  in  compensation  or  mileage  shall  take  effect 
during  the  term  for  which  the  members  of  either  house  shall  have 
been  elected,  and  the  pay  of  no  attache  shall  be  increased  after 
he  is  elected  or  appointed. 


243  LEGISLATIVE  DEPARTMENT.      Art.  IV,  §§  23a,  24 

LEGISLATIVE  EXPENSES.— This  section,  as  amended  in  1908, 
means  that  neither  house  of  the  legislature  shall  in  any  case  provide 
for  an  expense  for  officers,  employees  and  attaches  to  exceed  the  sum 
of  five  hundred  dollars  per  day  at  any  regular  session,  or  two  hundred 
dollars  per  day  at  any  special  or  extraordinary  session,  and  all  post 
session  expenses  must  be  met  out  of  these  allowances.  (Hilborn  v. 
Nye,  15  Cal.  App.  298,  114  Pac.  801.) 

Officers,  employees  and  attaches. 

See.  23a.  The  legislature  may  also  provide  for  the  em- 
ployment of  help ;  but  in  no  case  shall  the  total  expense  for 
officers,  employees  and  attaches  exceed  the  sum  of  five  hun- 
dred dollars  per  day  for  either  house,  at  any  regular  or  bien- 
nial session  nor  the  sum  of  two  hundred  dollars  per  day  for 
either  house  at  any  special  or  extraordinary  session,  nor 
shall  the  pay  of  any  of^cer,  employee  or  attache  be  in- 
creased after  he  is  elected  or  appointed.  (Amendment 
adopted  November  3,  1908.) 

Title  of  laws — Revision  and  amendment — Publication  of. 

Sec.  24.  Every  act  shall  embrace  but  one  subject,  which 
subject  shall  be  expressed  in  its  title.  But  if  any  subject 
shall  be  embraced  in  an  act  which  shall  not  be  expressed  in 
its  title,  such  act  shall  be  void  only  as  to  so  much  thereof 
as  shall  not  be  expressed  in  its  title.  No  law  shall  be  re- 
vised or  amended  by  reference  to  its  title ;  but  in  such  case 
tlie  act  revised  or  section  amended  shall  be  re-enacted  and 
published  at  length  as  revised  or  amended;  and  all  laws  of 
the  state  of  California,  and  all  official  writings,  and  the  ex- 
ecutive, legislative,  and  judicial  proceedings  shall  be  con- 
ducted, preserved,  and  published  in  no  other  than  the  Eng- 
lish language. 

TITLE  AND  FORM  OF  ACTS — Construction. — A  like  provision  of 
the  form.er  Constitution  was  held  to  be  merely  directory.  (Washing- 
ton V.  Page,  4  Cal.  388;  Pierpont  v.  Crouch,  10  Cal.  315;  San  Fran- 
cisco V.  Spring  Valley  W.  W.,  54  Cal.  571.) 

But  the  provisions  of  this  section  are  held  to  be  mandatory.  (Ex 
parte  Liddell,  93  Cal.  633,  29  Pac.  251.) 

It  was  by  reason  of  the  provision  of  section  22  of  article  I  that  this 
section  was  declared  mandatory.  (Law  v.  San  Francisco,  144  Cal. 
384,  77  Pac.  1014.) 

A  like  provision  of  the  San  Francisco  charter  is  held  to  be  directory 
only.     (Law  v.  San  Francisco,  144  Cal.  384,  77  Pac.  1014.) 


Art.  IV,  §  24  CONSTITUTION  OF  1879.  244 

The  title  of  an  act  cannot  be  used  to  restrain  or  control  any  posi- 
tive provision  of  the  act,  but  where  the  meaning  of  the  body  of  the 
act  is  doubtful,  the  title  may  be  resorted  to  as  a  means  of  ascertain- 
ing the  intention  of  the  legislature.  (People  v.  Abbott,  16  Cal.  358; 
Barnes  v.  Jones,  51  Cal.  303;  Matter  of  Boston  Min.  etc.  Co.,  51  Cal. 
624;  Harris  v.  Supervisors,  52  Cal.  553.) 

The  provisions  of  this  section  should  be  liberally  construed,  and 
the  matter  must  be  left  largely  to  legislative  discretion.  (Ex  parte 
Liddell,  93  Cal.  633,  29  Pac.  251;  Abeel  v.  Clark,  84  Cal.  226,  24  Pac. 
383.) 

This  section  does  not  apply  to  municipal  ordinances.  (Ex  parte 
Haskell,  112  Cal.  412,  32  L.  K.  A.  527,  44  Pac.  725.) 

As  to  whether  this  section  applies  to  the  amendment  of  statutes 
enacted  before  the  present  Constitution,  see  People  v.  Parvin,  74  Cal. 
549,  16  Pac.  490. 

One  subject. — Numerous  provisions  having  one  general  object  fairly 
indicated  by  the  title  may  be  united.  (Ex  parte  Liddell,  93  Cal.  633, 
29  Pac.  251;  People  v.  Parks,  58  Cal.  624;  Ex  parte  Kohler,  74  Cal. 
38,  15  Pac.  436;  De  Witt  v.  San  Francisco,  2  Cal.  289;  Murphy  v. 
Bondshu,  2  Cal.  App.  249,  83  Pac.  278.) 

The  act  of  1891,  adding  a  new  part  to  the  Vrooman  Act  in  relation 
to  street  improvement  bonds,  does  not  contain  more  than  one  subject. 
(Hellman  v.  Shoulters,  114  Cal.  136,  44  Pac.  915,  45  Pac.  1057.) 

An  act  entitled:  "An  act  to  establish  a  uniform  system  of  county 
and  township  governments,"  classifying  the  counties  by  population 
and  fixing  the  compensation  of  the  county  officers,  only  contains  one 
subject.     (Longan  v.  Solano  County,  65  Cal.  122,  3  Pac.  463.) 

A  resolution  approving  thirteen  separate  amendments  to  a  city 
charter  is  not  in  violation  of  this  section.  (In  re  Pfahler,  150  Cal. 
71,' 11  Ann.  Cas.  911,  11  L.  E.  A.  (N.  S.)  1092,  88  Pac.  270.) 

The  "Torrens  Land  Law"  onlj'  embraces  one  subject.  (Robinson  v. 
Kerrigan,  151  Cal.  40,  12  Ann.  Cas.  829,  121  Am.  St.  Eep.  90,  90  Pac. 
129.) 

The  act  of  March  23,  1901  (Stats.  1901,  p.  647),  adding  certain  sec- 
tions to  the  Political  Code,  re-enacting  others,  amending  others,  and 
repealing  others,  all  relating  to  revenue  and  taxation,  does  not  violate 
this  provision.      (Murphy  v.  Bondshu,  3  Cal.  App.  249,  83  Pac.  278.) 

The  primary  election  law  of  1909  is  not  unconstitutional  for  em- 
bracing in  its  title  the  subject  of  an  advisory  vote  for  United  States 
senators,  as  the  matter  of  such  a  vote  is  germane  to  the  subject  of  a 
primary  election.     (Socialist  Party  v.  Uhl,  155  Cal.  776,  103  Pac.  181.) 

The  act  of  March  19,  1878  (Stats.  1877-78,  339),  does  not  contain 
more  than  one  subject.  (San  Francisco  v.  Spring  Valley  W.  W.,  54 
Cal.  571.) 

If  the  act  is  made  of  incongruous  parts,  or  to  comprehend  uncon- 
nected and  dissimilar  subjects  to  that  expressed  in  the  title,  it  cannot 
be  upheld.     (People  v.  Parks,  58  Cal.  624.) 

The  preservation  of  fish  and  game  is  a  single  subject  of  legislation. 
(Ah  King  v.  Police  Court,  139  Cal.  718,  73  Pac.  587.) 

An  act  purporting  in  its  title  to  add  seven  enumerated  sections  to 
the  Penal  Code  "all  relating  to  the  prostituting  of  women"  only  em- 


245  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  24 

braces  one  subject.  (People  v.  Duncan,  22  Cal.  App.  430,  134  Pac. 
797.) 

An  act  entitled,  "An  act  to  add  another  section  to  the  Code  of  Civil 
Procedure  of  the  State  of  California,  relating  to  incompetent  per- 
sons," only  contains  one  subject.  (Matter  of  Coburn,  165  Cal.  202, 131 
fac.  352.) 

An  act  entitled,  "An  act  to  provide  for  work  upon  public  roads, 
etc.,  not  within  the  territory  of  incorporated  cities  or  towns;  for  the 
incidental  establishment  of  grades  thereof;  for  the  construction 
therein  or  thereon  of  sidewalks,  etc.,  for  the  issue  of  bonds  represent- 
ing the  costs  and  expenses  thereof;  for  a  special  fund  derived  in  part 
by  special  assessment  upon  a  district  and  for  the  establishment  of 
such  districts,"  only  contains  one  subject.  (McCray  v.  Manning,  22 
Cal.  App.  25,   133  Pac.  17.) 

An  act  entitled  "An  act  to  amend  section  1970  of  the  Civil  Code  of 
the  state  of  California,  relating  to  the  responsibility  of  employers  for 
injuries  to  or  death  of  employees,"  only  contains  one  subject.  (Pritch- 
ard  V.  Whitney  Estate  Co.,  164  Cal.  564,  129  Pac.  989.) 

An  act  entitled  "An  act  to  amend  sections  204,  205,  206  and  20S  of 
the  Code  of  Civil  Procedure,"  only  contains  one  subject.  (Ross  v. 
Aguirre,  191  U.  S.  60,  48  L.  Ed.  94,  24  Sup.  Ct.  Rep.  22.) 

An  act  entitled,  "An  act  limiting  the  hours  of  labor  of  females  em- 
ployed in  any  manufacturing,  mechanical  or  mercantile  establishment, 
etc.;  compelling  each  employer  in  any  manufacturing,  mechanical  or 
mercantile  establishment,  etc.,  to  provide  seats  for  all  female  em- 
ployees and  to  permit  them  to  use  such  seats  when  they  are  not  en- 
gaged in  the  active  duties  of  their  employment;  and  providing  a 
penalty  for  failure,  neglect  or  refusal  of  the  employer  to  comply  with 
the  provisions  of  this  act  and  for  permitting  or  suffering  any  over- 
seer, etc.,  to  violate  the  provisions  of  this  act,"  only  contains  one 
subject.  (In  re  Miller,  162  Cal.  687,  124  Pac.  427;  affirmed  in  Miller 
V.  Wilson,  236  U.  S.  373,  59  L.  Ed.  628,  35  Sup.  Ct.  Rep.  342.) 

The  fact  that  the  title  of  an  act  is  broader  than  the  act  itself  does 
not  render  the  act  obnoxious  to  this  section.  (Ex  parte  Mascolo,  25 
Cal.  App.  92,   142  Pac.  903.) 

The  title  of  the  Street  Law  of  1907  does  not  contain  more  than  one 
subject.     (Hunt  v.  Manning,  24  Cal.  App.  44,  140  Pac.  39.) 

Title. — The  purpose  of  this  provision  is  to  protect  the  members  of 
the  legislature  as  well  as  the  public  against  fraud  from  deceitful  and 
misleading  titles.  (Ex  parte  Liddell,  93  Cal.  633,  29  Pac.  251,  Abeel 
V.  Clark,  84  Cal.  226,  24  Pac.  383;  Matter  of  Bonds  of  South  San 
Joaquin  I.  Dist.,  161  Cal.  345,  119  Pac.  198;  Matter  of  Maginnis,  162 
Cal.  200,  121  Pac.  723.) 

If  the  title  is  of  such  a  character  as  to  mislead  the  public  or  the 
members  of  the  legislature,  as  to  the  subjects  embraced  in  it,  it  is 
void.     (Wood  v.  Election  Commrs.,  58  Cal.  561.) 

The  words  in  a  title  "and  for  other  purposes"  do  not  validate  pro- 
visions which  are  not  germane  to  the  particular  subjects  expressed  in 
the  title.     (Spier  v.  Baker,  120  Cal.  370,  41  L.  R.  A.  196,  52  Pac.  659.) 

It  is  not  necessary  that  the  title  of  an  act  should  embrace  an  ab- 
stract or  catalogue  of  its  contents.  (Abeel  v.  Clark,  84  Cal.  226,  24 
Pac.  383;  Ex  parte  Liddell,  93  Cal.  633,  29  Pac.  251;  People  v.  Supe- 


Art.  IV,  §  24:  CONSTITUTION  OF  1879.  24G 

rior  Court,  100  Cal.  105,  34  Pae.  492;  People  v.  Linda  Vista  Irr.  Pist., 
128  Cal.  477,  61  Pac.  86;  Hellman  v.  Shoultcrs,  114  Cal.  136,  44  Pac. 
915,  45  Pac.  1057;  Ex  parte  Hallawell,  155  Cal.  112,  99  Pac.  490.) 

The  title  of  an  act  is  not  misleading,  because  it  purports  to  provide 
for  a  "general"  vaccination,  when  in  fact  it  only  applies  to  children 
in  the  public  schools.  (Abeel  v.  Clark,  84  Cal.  226,  24  Pac,  383; 
French  v.  Davidson,  143  Cal.  658,  77  Pac.  663.) 

If  the  act  entitled,  "An  act  to  amend  'An  act  to  protect  stockhold- 
ers and  persons  dealing  with  corporations  in  this  state,'  approved 
March  20,  1878,"  would,  if  passed  as  a  new  act,  be  invalid  under  the 
present  Constitution,  because  of  insufficiency  of  its  title  to  express  the 
subject,  yet  it  is  nevertheless  valid,  since  the  original  act  of  1878  was 
valid  under  the  former  Constitution,  and  since  the  amendatory  act 
recites  the  original  valid  act,  of  which  it  is  amendatory,  and  re-enacts 
the  act  as  amended  in  full.  (People  v.  Merritt,  18  Cal.  App.  58,  122 
Pac.  839.) 

Effect  of  provisions  requiring  statutes  to  embrace  but  one  subject, 
which  shall  be  expressed  in  the   title.     See  note,  61  Am.  Dec. 
337. 
Sufficiency  of  title.     See  note,  64  Am.  St.  Eep.  70. 
When  title   embraces  but  one  subject  and  what  it  may  include. 

See  note,  79  Am.  St.  Eep.  456. 
Construction    of    constitutional    provisions    relative    to    titles    of 

statutes.     See  note,  1  Ann.  Cas.  584. 
Validity   of   statute   having   title    more    comprehensive    than    act 

itself.     See  note,  Ann.  Cas.  1912A,  102. 
Validity  of  statute  providing  for  penalty  or  punishment  not  men- 
tioned in  title.     See  note,  Ann.  Cas.  1912D,  157. 

Particular  acts  held  valid. — The  titles  of  the  following  acts  have 
been  held  sufficient:  An  act  entitled,  "An  act  to  amend  section  3581 
of  the  Political  Code"  (People  v.  Parvin,  74  Cal.  549,  16  Pac.  490. 
But  see  Lewis  v.  Dunne,  134  Cal.  291,  86  Am.  St.  Eep.  257,  55  L.  E.  A. 
8'33,  66  Pac.  478);  a  title  expressing  the  object  of  the  act  to  be  "to 

amend   section  "   of   a   named   code   "relating"   to   the   particular 

object  treated  of  in  the  body  of  the  act  (San  Francisco  etc.  E.  E.  Co. 
V.  State  Board,  60  Cal.  12);  an  act  entitled,  "An  act  to  prohibit  the 
sophistication  and  adulteration  of  wine,  and  to  prevent  fraud  in  the 
manufacture  and  sale  thereof,"  and  defining  pure  wine,  prohibiting 
the  use  of  deleterious  substitutes,  and  forbidding  the  sale  of  impure 
wine  (Ex  parte  Kohler,  74  Cal.  38,  15  Pac.  436);  an  act  entitled, 
"An  act  to  amend  an  act  entitled  'An  act  to  establish  a  Penal  Code,' 
approved  February  14,  1872,  by  amending  section  634,  relating  to 
fish  and  game"  (People  v.  Dobbins,  73  Cal.  257,  14  Pac.  860) ;  an  act 
entitled,  "An  act  to  provide  for  laying  out,  etc.,  any  street,  etc.,  and 
to  condemn  and  acquire  any  and  all  lands  and  property  necessary  or 
convenient  for  that  purpose,"  and  providing  for  the  assessment  of 
other  lands  to  pay  for  lands  condemned  (Davies  v.  Los  Angeles,  86 
Cal.  37,  24  Pac.  771);  an  act  entitled,  "An  act  for  the  better  protec- 
tion of  stockholders  in  corporations  formed  under  the  laws  of  the 
state  of  California  for  the  purpose  of  carrying  on.  and  conducting  the 


247  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  24 

business  of  mining,"  and  providing  a  penalty  for  failure  to  make  or 
post  an  itemized  account  or  balance-sheet  (Francais  v.  Somps,  92  Cal. 
503,  28  Pac.  592) ;  an  act  entitled,  "An  act  to  establish  a  state  reform 
school  for  juvenile  offenders,  and  to  make  an  appropriation  therefor," 
and  providing  for  the  commitment  of  juvenile  offenders  to  such 
schools  (Ex  parte  Liddell,  93  Cal.  633,  29  Pac.  251);  an  act  entitled, 
"An  act  to  provide  for  laying  out,  etc.,  any  street,  etc.,  in  munici- 
palities, and  to  condemn  and  acquire  any  and  all  land  and  property 
necessary  and  convenient  for  that  purpose,"  and  validating  former 
proceedings  for  the  widening  of  streets  (San  Francisco  v.  Kiernan, 
98  Cal.  614,  33  Pac.  720);  an  act  entitled,  "An  act  creating  a  board 
of  bank  commissioners,  and  prescribing  their  duties  and  powers,"  and 
providing  for  winding  up  of  banking  corporations  (People  v.  Superior 
Court,  100  Cal.  105,  34  Pac.  492);  an  act  entitled,  "An  act  to  create 
the  county  of  Kings,  to  define  the  boundaries  thereof,  and  to  provide 
for  its  organization  and  election  of  officers,  and  to  classify  said 
county,"  and  providing  for  the  collection  of  taxes  levied  before  the 
formation  of  the  county  but  collected  afterward  (Kings  County  v. 
Johnson,  104  Cal.  198,  37  Pac.  870);  an  act  entitled,  "An  act  to  create 
the  office  of  commissioner  of  transportation,  and  to  define  its  powers 
and  duties;  to  fix  the  maximum  charges  for  transporting  passengers 
and  freights  on  certain  railroads,  and  to  prevent  extortion  and  unjust 
discrimination  thereon,"  and  providing  for  the  collection  of  fines 
against  a  person  evading  the  payment  of  his  fare  (Gieseke  v.  San 
Joaquin  County,  109  Cal.  489,  42  Pac.  446);  an  act  entitled,  "An  act 
to  establish  a  uniform  system  of  county  and  township  governments," 
and  classitying  the  counties  by  population,  and  fixing  the  compensa- 
tion of  the  county  officers  (Longan  v.  Solano  County,  65  Cal.  122, 
3  Pac.  463);  an  act  entitled,  "An  act  to  regulate  fees  in  office,"  and 
providing  that  the  officer  shall  pay  part  of  his  fees  into  the  treasury 
(Ream  v.  Siskiyou  Co.,  36  Cal.  621);  an  act  entitled,  "An  act  to  en- 
able certain  parties  therein  named  to  alienate  and  encumber  home- 
steads," and  providing  for  the  alienation  of  the  homestead  by  the 
sane  spouse,  under  order  of  the  probate  court  (Jones  v.  Falvella,  126 
Cal.  24,  58  Pac.  311);  an  act  entitled,  "An  act  to  protect  and  promote 
the  horticultural  interests  of  the  state,"  and  making  the  expense  of 
abating  an  insect  pest  nuisance  from  any  property  a  lien  thereon 
(Los  Angeles  County  v.  Spencer,  126  Cal.  670,  77  Am.  St.  Rep.  217, 
59  Pac.  202);  a  provision  relating  to  city  justices  of  the  peace  in  an 
act  entitled,  "An  act  to  establish  a  uniform  system  of  county  and 
township  government"  (People  v.  Cobb,  133  Cal.  74,  65  Pac.  325); 
an  act  purporting  in  its  title  to  add  thirty-four  enumerated  sections 
to  the  Political  Code,  "all  relating  to  the  establishment  of  a  board 
of  state  harbor  commissioners  for  the  bay  of  San  Diego,"  and  author- 
izing the  commissioners  to  institute  an  action  for  the  possession  of 
any  portion  of  the  entire  bay  of  San  Diogo,  of  which  they  are  given 
the  possession  and  control  (People  v.  Mullender,  132  Cal.  217,  64  Pac. 
299);  the  statutes  of  December  25,  1877,  and  March  30,  1878,  in  rela- 
tion to  highways  in  Los  Angeles  county  (Southern  Pac.  Co.  v. 
Pomona,  144  Cal.  339,  77  Pac.  929);  an  act  entitled,  "An  act  in  rela- 
tion to  foreign  corporations,"  and  providing  for  the  designation  of 
agents,  services  of  process   and  proof  of  corporate  existence    (Anglo- 


Art.  IV,  §  24  CONSTITUTION  OF  1879.  248 

Calif ornian  Bank  v.  Field,  146  Cal.  644,  80  Pac.  1080);  an  act  entitled, 
"An  act  to  provide  for  the  establishment  and  quieting  of  title  to  real 
property  in  case  of  loss  or  destruction  of  public  records"  (Title  etc. 
Kestoration  Co.  v.  Kerrigan,  150  Cal.  289,  119  Am.  St.  Rep.  199,  8 
L.  E.  A.  (N.  S.)  682,  88  Pac.  356);  the  act  of  March  29,  1905,  provid- 
ing for  a  license  tax  on  corporations  (Kaiser  Land  &  Fruit  Co.  v. 
Curry,  155  Cal.  638,  103  Pac.  341);  an  act  to  create  a  drainage  dis- 
trict to  be  called  "Sacramento  Drainage  District,"  etc.  (People  v. 
Sacramento  Drainage  District,  155  Cal.  373,  103  Pac.  207);  "an  act 
regulating  the  sale  of  poison  in  the  state  of  California,  and  providing 
a  penalty  for  the  violation  thereof"  (Ex  parte  Hallawell,  155  Cal.  112, 
99  Pac.  490);  "An  act  creating  a  board  of  bank  commissioners  and 
prescribing  their  duties  and  powers"  (People  v.  Bank  of  San  Luis 
Obispo,  154  Cal.  194,  97  Pac.  306);  "An  act  to  add  three  new  sections 
to  the  Code  of  Civil  Procedure,  to  be  known  as  sections  numbers 
941a,  941b  and  941c  of  said  code,  respectively,  providing  a  new  and 
alternative  method  by  which  appeals  may  be  taken  from  judgments, 
orders  or  decrees  of  the  superior  court  of  the  state  of  California  to 
the  supreme  court  or  district  courts  of  appeal  thereof"  (Estate  of 
McPhee,  154  Cal.  385,  97  Pac.  878);  "An  act  to  insure  the  better  edu- 
cation of  practitioners  of  dental  surgery,  and  to  regulate  the  practice 
of  dentistry  in  the  state  of  California,  providing  penalties  for  the 
violation  hereof,  and  to  repeal  an  act  now  in  force  relating  to  the 
same  and  known  as  "An  act,  .  .  .  etc.,  approved  March  12,  1885" 
(Ex  parte  Hornef,  154  Cal.  355,  97  Pac.  891);  the  act  approved  June 
2,  1913,  for  the  regulation  of  the  practice  of  medicine  and  surgery, 
etc.  (People  v.  Ah  Fong,  25  Cal.  App.  724,  145  Pac.  153);  an  act  en- 
titled, "An  act  to  regulate  the  sale  and  use  of  poisons  in  the  state  of 
California,  and  providing  for  the  violation  thereof,"  which  makes  the 
mere  possession  of  certain  drugs,  with  certain  exceptions,  a  crime 
(Matter  of  Yun  Quong,  159  Cal.  508,  Ann.  Cas.  1912C,  969,  114  Pac. 
835);  an  act  entitled,  "An  act  to  provide  for  the  organization  and 
government  of  irrigation  districts,  and  to  provide  for  the  acqui- 
sition or  construction  thereby  of  works  for  the  irrigation  of  the 
lands  embraced  within  such  districts,  and,  also,  to  provide  for 
the  distribution  of  water  for  irrigation  purposes,"  and  providing  for 
the  institution  and  prosecution  by  the  district  of  a  proceeding 
brought  to  test  the  validity  of  an  assessment  (Matter  of  Bonds  of 
the  San  Joaquin  I.  Dist.,"  161  Cal.  345,  119  Pac.  198) ;  an  act 
entitled,  "An  act  limiting  the  hours  of  labor  of  females  employed  in 
any  manufacturing,  mechanical  or  mercantile  establishment,  etc.; 
compelling  each  employer  in  any  manufacturing,  mechanical  or  mer- 
cantile establishment,  etc.,  to  provide  suitable  seats  for  all  female 
employees  and  to  permit  them  to  use  such  seats  when  they  are 
not  engaged  in  the  active  duties  of  their  employment;  and  providing 
a  penalty  for  failure,  neglect  or  refusal  of  the  employer  to  comply 
with  the  provisions  of  this  act  and  for  permitting  or  suffering  any 
overseer,  etc.,  to  violate  the  provisions  of  this  act,"  since  it  embraced 
but  one  general  subject — the  regulation  of  female  employment  (In  re 
Miller,  162  Cal.  687,  124  Pac.  427;  affirmed  in  Miller  v.  Wilson,  236 
U.  S.  373,  59  L.  Ed.  628,  35  Sup.  Ct.  Eep.  342);  an  act  entitled,  "An 
act   concerning   dependent    and    delinquent    minor    children,    providing 


249  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  24 

for  their  care,  custody  and  maintenance,  etc.  (In  re  Maginnis,  162 
Cal.  200,  121  Pac.  723);  an  act  entitled,  "An  act  to  amend  section 
1970  of  the  Civil  Code  of  the  state  of  California,  relating  to  the 
responsibility  of  employers  for  injuries  to  or  death  of  employees" 
(Pritchard  v.  Whitney  Estate  Co.,  164  Cal.  564,  129  Pac.  989);  an  act 
entitled,  "An  act  to  add  another  section  to  the  Code  of  Civil  Proce- 
dure of  the  state  of  California  relating  to  incompetent  persons" 
(Matter  of  Coburn,  165  Cal.  202,  131  Pac.  352);  an  act  entitled,  "An 
act  to  amend  section  sixty-one  of  the  Civil  Code,  relating  to  the  grant- 
ing of  divorces"  (Estate  of  Elliott,  165  Cal.  339,  132  Pac.  439);  an 
act  entitled,  "An  act  to  amend  'An  act  to  protect  stockholders  and 
persons  dealing  with  corporations  in  this  state,'  approved  March  20, 
1878,"  notwithstanding  the  body  of  the  act  as  amended  is  wholly 
penal  in  its  provisions  (People  v.  Merritt,  18  Cal.  App.  58,  122  Pac. 
839);  an  act  entitled,  "An  act  to  prohibit  the  formation  and  exist- 
ence of  secret  oath-bound  fraternities  in  the  public  schools"  (Brad- 
ford V.  Board  of  Education,  18  Cal.  App.  19,  121  Pac.  929);  an  act 
entitled,  "An  act  concerning  dependent  and  delinquent  minor  children, 
providing  for  their  care,  custody  and  maintenance  until  twenty-one 
years  of  age"  (Moore  v.  Williams,  19  Cal.  App.  600,  127  Pac.  509); 
an  act  entitled,  "An  act  to  regulate  the  use  and  operation  of  vehi- 
cles," etc.  (In  re  Schuler,  167  Cal.  282,  Ann.  Cas.  1915C,  706,  139  Pac. 
685);  "An  act  to  add  a  new  section  to  the  Penal  Code  of  the  state  of 
California,  to  be  numbered  636^4,  to  prevent  the  use  or  possession 
of  lompara  nets,  paranzella  nets,  trawl  or  drag  nets,  and  providing 
the  penalty  therefor"  (Ex  parte  Mascolo,  25  Cal.  App.  92,  142  Pac. 
903). 

See,  also,  People  v.  King,  127  Gal.  570,  60  Pac.  35;  Leake  v.  Colgan, 
125  Cal.  413,  58  Pac.  69;  Jennings  v.  Le  Roy,  63  Cal.  397;  People  v. 
Henshaw,  76  Cal.  436,  18  Pac.  413;  Pennie  v.  Eeis,  80  Cal.  266,  22  Pac. 
176;  People  v.  Linda  Vista  Irr.  Dist.,  128  Cal.  477,  61  Pac.  86;  Carpen- 
ter v.  Furrey,  128  Cal.  665,  61  Pac.  369;  Vernon  etc.  Dist.  v.  Board 
of  Education,  125  Cal.  593,  58  Pac.  175;  Ex  parte  Pfirrman,  134  Cal. 
143,  66  Pac.  205;  Jackson  v.  Baehr,  138  Cal.  266,  71  Pac.  167;  In  re 
Martin,  157  Cal.  51,  26  L.  R.  A.  (N.  S.)  242,  106  Pac.  235. 

Validity  of  liquor  law  under  constitutional  provision  as  to  title 
and  subject  matter  of  statutes.     See  note,  20  Ann.  Cas.  323. 

Particular  acts  held,  invalid. — The  following  acts  have  been  held  to 
violate  this  provision:  An  act  whose  title  simply  purports  to  repeal 
the  statute  concerning  the  publication  of  constitutional  amendments, 
but  in  the  body  of  the  act  also  provides  a  new  method  of  publishing 
such  amendments  (People  v.  Curry,  130  Cal.  82,  62  Pac.  516);  an  act 
amending  the  act  for  the  formation  of  sanitary  districts,  and  provid- 
ing that  sanitary  boards  may  determine  the  qualification  of  persons 
authorized  to  sell  liquors  at  retail,  this  subject  not  being  germane  to 
the  title  of  the  original  act  (In  re  Werner,  129  Cal.  567,  62  Pac.  97); 
an  act  entitled,  "An  act  to  establish  fees,"  etc.,  and  providing  for 
the  payment  of  one  dollar  for  each  one  thousand  dollars  in  excess  of 
three  thousand  dollars  of  the  appraised  value  of  the  estate  upon  filing 
the  inventory,  such  payment  being  a  tax  and  not  a  fee  (Fatjo  v.  Pfis- 
ter,  117  Cal.  83,  48  Pac.  1012);  an  act  entitled,  "An  act  to  amend  sec- 


Art.  IV,  §  24  CONSTITUTION  OF  1879,  250 

tions  four  thousand  and  four,"  and  other  sections  "to  establish  a 
system  of  county  governments,  approved  April  27,  1880,"  but  refer- 
ring to  no  particular  code  or  statute  (Leonard  v.  January,  56  Cal.  1); 
an  act  entitled,  "An  act  to  promote  drainage,"  and  providing  for  the 
control  of  debris  from  mining  and  other  operations,  the  improvement 
and  rectification  of  river  channels,  and  the  erection  of  embankments  or 
dykes  necessary  for  the  protection  of  lands,  towns  or  cities  from  inun- 
dation (People  V.  Parks,  58  Cal.  624;  Doane  v.  Weil,  58  Cal.  334];  an 
act  the  title  of  which  provides  only  for  the  refunding  of  the  indebted- 
ness of  cities,  and  the  issuance  of  bonds  therefor,  and  repealing  an  act 
for  the  incurring  of  indebtedness  by  municipal  corporations  (Los  Ange- 
les v.  Hance,  122  Cal.  77,  54  Pac.  387) ;  an  act  entitled,  "An  act  to  estab- 
lish a  uniform  system  of  county  and  township  governments"  and 
providing  for  the  salaries  of  official  reporters  of  the  superior  courts 
(Pratt  V.  Browne,  135  Cal.  649,  67  Pac.  1082);  an  act  entitled,  "An 
act  creating  a  board  of  commissioners  of  building  and  loan  associa- 
tions, and  prescribing  their  duties  and  powers,"  and  providing  for 
withdrawals  (Provident  etc.  Assn.  v.  Davis,  143  Cal.  253,  76  Pac. 
1034);  an  act  purporting  in  its  title  to  deal  with  publications  by  cer- 
tain public  officers  and  in  the  body  of  the  act  providing  for  other 
classes  of  publications  (Estate  of  Melone,  141  Cal.  331,  74  Pac.  991); 
an  act  entitled,  "An  act  to  establish  a  tax  on  collateral  inheritances, 
bequests,  and  devises"  and  imposing  such  a  tax  on  direct  kindred 
(Estate  of  Winchester,  140  Cal.  468,  74  Pac.  10);  an  act  to  amend  the 
fish  and  game  law  of  1911,  by  adding  a  new  section  thereto,  and  in 
fact  materially  changing  and  amending  every  section  of  the  act  of 
1911   (In  re  Mascolo,  25  Cal.  App.  92,  142  Pac.  903). 

Amendments  of  codes. — An  act  entitled  an  act  to  amend  a  particu- 
lar section  of  one  of  the  codes  sufficiently  states  the  subject  of  the 
act.     (People  v.  Gates,  142  Cal.  12,  75  Pac.  337.) 

The  fact  that  an  act  does  not  deal  with  the  matter  of  crimes  and 
punishments  does  not  prevent  it  from  being  in  the  form  of  an  amend- 
ment tcy  the  Penal  Code,  if  its  title  shows  its  subject  matter.  (County 
of  Butte  V.  Merrill,  141  Cal.  396,  74  Pac.  1036.) 

An  act  entitled  an  act  to  add  a  new  section  to  a  named  code  relat- 
ing to  a  named  subject  is  sufficient  to  embrace  all  matters  relating  to 
such  subject.  (Deyoe  v.  Superior  Court,  140  Cal.  476,  98  Am.  St.  Eep. 
73,  74  Pac.  28.) 

Section  146  of  the  Civil  Code  is  not  unconstitutional  because  the  act 
of  1873-74  passing  it  was  entitled,  "An  act  to  amend  the  Civil  Code" 
(Zanone  v.  Sprague,  16  Cal.  App.  333,  116  Pac.  989). 

The  fact  that  an  act  adds  certain  sections  which  relate  to  proce- 
dure to  the  Civil  Code,  instead  of  the  Code  of  Civil  Procedure,  does 
not  make  it  invali'd.  (Deyoe  v.  Superior  Court,  140  Cal.  476,  98  Am. 
St.  Eep.  73,  74  Pac.  28.) 

An  act  entitled  "An  act  to  revise  the  Code  of  Civil  Procedure  of 
the  state  of  California  by  amending  certain  sections,  repealing  others, 
and  adding  certain  new  sections,"  was  held  not  to  sufficiently  state 
its  subject  in  its  title,  for  the  reason  that  the  "Code  of  Civil  Pro- 
cedure" does  not  state  or  express  any  subject.  (Lewis  v.  Dunne,  134 
Cal.  291,  86  Am.  St.  Rep.  257,  55  L.  E.  A.  833,  66  Pac.  478.) 


251  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  24 

That  such  terms  as  the  "Code  of  Civil  Procedure,"  "Criminal  Code," 
"Probate  Code,"  "Political  Code,"  etc.,  do  sufficiently  state  a  subject, 
see  Central  etc.  R.  Co.  v.  State,  104  Ga.  831,  42  L.  R.  A.  .518,  31  S.  E. 
531;  Porter  v.  Thompson,  22  Iowa,  391;  State  v.  Brassfield,  81  Mo. 
151,  51  Am.  Rep.  234;  Woodruff  v.  Baldwin,  23  Kan.  491;  Heller  v. 
People,  2  Colo.  App.  459,  31  Pac.  773;  Johnson  v.  Harrison,  47  Minn. 
575,  28  Am.  St.  Rep.  382,  50  N.  W.  923;  Marston  v.  Humes,  3  Wash. 
267,  28  Pac.  520;  Mathis  v.  State,  31  Fla.  291,  12  South.  681;  Ex  parte 
Thomas,  113  Ala.  1,  21  South.  369;  Tribune  etc.  Co.  v.  Barnes,  7  N.  D. 
591,  75  N.  W.  904;  Murphey  v,  Menard,  11  Tex.  673. 

If  the  adoption  of  section  1767  of  the  Code  of  Civil  Procedure 
amended  ^he  existing  law  as  declared  in  said  code,  it  amended  it  by 
implication  only,  and  this  constitutional  provision  has  no  application 
to  such  implied  amendments.  (Matter  of  Coburn,  165  Cal.  202,  131 
Pac.  352.) 

Publishing  at  length. — A  revised  act  must  be  construed  as  a  new 
and  original  piece  of  legislation.  (Donlon  v.  Jewett,  88  Cal.  530,  26 
Pac.  370;  In  re  Bunkers,  1  Cal.  App.  61,  81  Pac.  748.) 

This  provision  applies  only  to  acts  which  are  in  terms  revisory  or 
amendatory  of  some  former  act;  and  it  does  not  apply  to  an  inde- 
pendent act,  although  it  is  inconsistent  with  some  existing  statute. 
(Pennie  v.  Reis,  80  Cal.  266,  22  Pac.  176;  Jennings  v.  Le  Roy,  63 
Cal.  397;  Baum  v.  Raphael,  57  Cal.  361;  In  re  Bunkers,  1  Cal.  App.  61, 
81  Pac.  748.) 

An  act  adding  a  new  section  to  the  Political  Code,  and  by  impli- 
cation amending  another  section  of  the  same  code,  was  held  to  violate 
this  provision,  if  considered  as  an  amendment,  since  it  did  not  repub- 
lish the  section  of  the  code  affected  by  it.  (Earle  v.  Board  of  Edu- 
cation, 55  Cal.  489.  But  see  Hellman  v.  Shoulters,  114  Cal.  136,  44 
Pac.  915,  45  Pac.  1057;  University  of  California  v.  Bernard,  57  Cal. 
612.) 

In  amending  a  section  the  entire  section  must  be  re-enacted.  (City 
of  Los  Angeles  v.  Lelande,  11  Cal.  App.  302,  104  Pac.  717.) 

This  section  does  not  apply  to  amendments  by  implication,  nor  to 
an  act  which  merely  adds  new  sections  relating  to  a  named  subject, 
which  leaves  in  full  operation  all  the  language  of  the  statute  which 
it  purports  to  amend,  and  does  not  purport  to  amend  any  section  of 
that  act,  but  affects  its  operation  only  by  implication  from  the  sec- 
tions added.  (Hellman  v.  Shoulters,  114  Cal.  136,  44  Pac.  915,  45 
Pac.  1057.     But  see  Earle  v.  Board  of  Education,  55  Cal.  489.) 

This  section  does  not  prevent  a  section  amended  from  taking  its 
place  by  its  appropriate  number  in  the  original  act.  (Fletcher  v. 
Prather,  102  Cal.  413,  36  Pac.  658.) 

It  is  a  sufficient  compliance  with  this  provision  to  republish  the 
section  of  the  act  amended.  (Estate  of  Campbell,  143  Cal.  623,  77 
Pac.  674.) 

Where  a  section  of  the  code  is  "amended  to  read  as  follows,"  and 
the  amended  section  is  published  at  length,  without  any  saving  clause, 
the  effect  of  the  amendment  is  to  repeal  the  section  as  it  originally 
stood;  and  a  section  of  the  amendatory  act  merely  providing  that  the 
amendment  shall  be  applicable  to  certain  counties  does  not  operate  as 


Art.  IV,  §  25  CONSTITUTION  OF  1879.  252 

a  saving  clause  to  continue  the  original  section  in  force  in  other  coun- 
ties.    (Huffman  v.  Hall,  102  Cal.  26,  36  Pac.  417.) 

Under  the  provisions  of  this  section  the  amendment  of  a  statute 
operates  as  an  absolute  repeal  of  the  statute  or  section  amended, 
even  if  the  amendment  takes  nothing  away  from  the  old  law,  but 
merely  adds  a  proviso  in  certain  cases.  (Billings  v.  Harvey,  6  Cal. 
381.) 

An  act  adding  five  new  sections  to  the  Political  Code  is  not  within 
the  mischief  which  this  section  was  intended  to  prevent.  (Univer- 
sity of  California  v.  Bernard,  57  Cal.  612.) 

An  act  entitled  "An  act  to  revise  the  Code  of  Civil  Procedure  of 
the  state  of  California  by  amending  certain  sections,  repealing  others, 
and  adding  certain  new  sections,"  and  amending,  repealing,  or  adding 
some  five  hundred  sections  of  that  code,  and  which  did  not  set  out  and 
republish  at  length  the  entire  Code  of  Civil  Procedure,  was  held  to 
violate  this  provision  of  the  Constitution.  (Lewis  v.  Dunne,  134  Cal. 
291,  86  Am.  St.  Rep.  257,  55  L.  R.  A.  833,  66  Pac.  478.) 

See,  however,  on  the  same  subject  the  following  cases:  Portland 
V.  Stock,  2  Or.  70;  Dolan  v.  Barnard,  5  Or.  390;  David  v.  Portland 
etc.  Co.,  14  Or.  98,  12  Pac.  174;  Greencastle  etc.  Co.  v.  State,  28  Ind. 
382;  Town  etc.  v.  Frieze,  33  Ind.  507;  Smails  v.  White,  4  Neb.  353; 
Arnoult  v.  New  Orleans,  11  La.  Ann.  54;  Tuskaloosa  etc.  Co.  v.  Olm- 
sted, 41  Ala.  9. 

The  act  of  April  9,  1880,  amending  one  hundred  and  eight  sections 
of  the  Penal  Code,  repealing  ten  sections,  and  adding  a  new  section 
thereto,  is  not  a  revision  of  the  entire  code,  requiring  a  republication 
thereof.     (People  v.  Gates,  142  Cal.  12,  75  Pac.  337.) 

As  to  whether  an  act  is  an  amendment  or  a  revision  of  another  act, 
see  Beach  v.  Von  Detten,  139  Cal.  462,  73  Pac.  187. 

Under  the  provisions  of  this  section  the  amendment  of  a  statute 
operates  as  an  absolute  repeal  of  the  statute  or  section  amended. 
(Buck  V.  Canty,  162  Cal.  226,  121  Pac.  924.) 

Constitutionality  of  code  amendments  and  revisions.     See  notes, 
86  Am.  St.  Rep.  267;  55  L.  R.  A.  842. 

English  language. — If  a  libel  in  the  Japanese  and  Chinese  language 
is  correctly  translated  into  English  in  the  complaint,  a  copy  of  the 
original  libel  need  not  be  inserted  in  it.  (Stevens  v.  Kobayshi,  20 
Cal.  App.  153,  128  Pac.  419.) 

Local  and  special  laws  prohibited. 

See.  25.  The  legislature  shall  not  pass  local  or  special 
laws  in  any  of  the  following  enumerated  cases,  that  is  to 
say: 

First — Regulating  the  jurisdiction  and  duties  of  justices 
of  the  peace,  police  judges,  and  of  constables. 

Second — For  the  punishment  of  crimes  and  misdemeanors. 

Third — Regulating  the  practice  of  courts  of  justice. 

Fourth — Providing  for  changing  the  venue  in  civil  or 
criminal  actions. 


253  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  25 

Fifth — Granting  divorces. 

Sixth — Changing  the  names  of  persons  or  places. 

Seventh — Authorizing  the  laying  out,  opening,  altering, 
maintaining,  or  vacating  roads,  highways,  streets,  alleys, 
town  plats,  parks,  cemeteries,  graveyards,  or  public  grounds 
not  OAvned  by  the  state. 

Eighth — Summoning  and  impaneling  grand  and  petit 
juries,  and  providing  for  their  compensation. 

Ninth — Regulating  county  and  township  business,  or  the 
election  of  county  and  township  officers. 

Tenth — For  the  assessment  or  collection  of  taxes. 

Eleventh — Providing  for  conducting  elections,  or  desig- 
nating the  places  of  voting,  except  on  the  organization  of 
new  counties. 

Twelfth — Affecting  the  estates  of  deceased  persons, 
minors,  or  other  persons  under  legal  disabilities. 

Thirteenth — Extending  the  time  for  the  collection  of 
taxes. 

Fourteenth — Giving  effect  to  invalid  deeds,  wills,  or  other 
instruments. 

Fifteenth — Refunding  money  paid  into  the  state  treasury. 

Sixteenth — Releasing  or  extinguishing,  in  whole  or  in 
part,  the  indebtedness,  liability,  or  obligation  of  any  cor- 
poration or  person  to  this  state,  or  to  any  municipal  corpo- 
ration therein. 

Seventeenth — Declaring  any  person  of  age  or  authorizing 
any  minor  to  sell,  lease,  or  encumber  his  or  her  property. 

Eighteenth — Legalizing,  except  as  against  the  state,  the 
unauthorized  or  invalid  act  of  any  officer. 

Nineteenth — Granting  to  any  corporation,  association,  or 
individual  any  special  or  exclusive  right,  privilege,  or  im- 
munity. 

Twentieth — Exempting  property  from  taxation. 

Twenty-first — Changing  county  seats. 

Twenty-second  —  Restoring  to  citizenship  persons  con- 
victed of  infamous  crimes. 

Twenty-third — Regulating  the  rate  of  interest  on  money. 

Twenty-fourth — Authorizing  the  creation,  extension,  or 
impairing  of  liens. 


Art.  IV,  §  25  CONSTITUTION  OF  1879.  25-4 

T  vventy-fifth — Chartering  or  licensing  ferries,  bridges,  or 
roads. 

Twenty-sixth — Remitting  fines,  penalties,  or  forfeitures. 

Twenty-seventh — Providing  for  the  management  of  com- 
mon schools. 

Twenty-eighth  —  Creating  offices,  or  prescribing  the 
powers  and  duties  of  officers  in  counties,  cities,  cities  and 
counties,  townships,  election  or  school  districts. 

Twenty-ninth — Affecting  the  fees  or  salary  of  any  officer. 

Thirtieth — Changing  the  law  of  descent  or  succession. 

Thirty-first — Authorizing  the  adoption  or  legitimation  of 
children. 

Thirty-second — For  limitation  of  civil  or  criminal  actions. 

Thirty-third — In  all  other  cases  where  a  general  law  can 
be  made  applicable. 

LOCAL  AND  SPECIAL  LAWS— In  general.— Under  the  former 
Constitution  the  legislature  was  not  forbidden  to  pass  local  or  special 
laws.  (Wigmore  v.  Buell,  122  Cal.  144,  54  Pac.  600;  People  v.  Twelfth 
District  Court,  17  Cal.  547;  Ex  parte  Buike,  59  Cal.  6,  43  Am.  Rep. 
231;  Nevada  School  Dist.  v.  Shoecraft,  88  Cal.  372,  26  Pac.  211.) 

The  provisions  of  this  section  are  prospective  only,  and  do  not 
affect  statutes  passed  before  its  adoption.  (Nevada  School  Dist.  v. 
Shoecraft,  88  Cal.  372,  26  Pac.  211;  Ex  parte  Burke,  59  Cal.  6,  43 
Am.  Rep.  231;  Rollins  v.  Wright,  93  Cal.  395,  29  Pac.  58;  Smith  v. 
McDermott,  93  Cal.  421,  29  Pac.  34;  Meade  v.  Watson,  67  Cal.  591, 
8  Pac.  311;  Ex  parte  Chin  Yan,  60  Cal.  78.) 

The  provisions  of  this  section  are  prospective  only,  and  do  not 
operate  to  destroy  the  force  of  existing  special  laws;  such  special 
laws  or  provisions  in  municipal  charters  became  subject  only  to  the 
general  laws  subsequently  passed  by  the  legislature  touching  the  same 
subject  matter.  (Vallejo  Ferry  Co.  v.  Lang  &  McPherson,  161  Cal. 
672,  120  Pac.  421.) 

The  legislature  cannot  make  a  special  act  general  by  a  legislative 
declaration  that  it  shall  be  considered  a  general  act.  (San  Fran- 
cisco V.  Spring  Valley  W.  W.,  48  Cal.  493.) 

A  law  which  on  its  face  is  general  and  may  be  applied  to  all  cities 
cannot  be  assailed  on  the  ground  that  it  was  in  fact  passed  to  effect 
an  improvement  in  one  city  only.  (Davies  v.  Los  Angeles,  86  Cal. 
37,  24  Pac.  771.) 

A  special  law  is  one  relating  to  a  selected  class,  as  well  as  a  par- 
ticular object.     (Smith  v.  McDermott,  93  Cal.  421,  29  Pac.  34.) 

As  to  what  is  a  general  and  what  a  special  law,  see  Ex  parte  Burke, 
59  Cal.  6,  43  Am.  Rep.  231,  per  Morrison,  C.  J. 

A  general  law  must  be  as  broad  as  the  subject  matter  to  which 
it  relates.     (Desmond  v.  Dunn,  55  Cal.  242.) 

An  act  applying  uniformly  upon  the  whole  of  any  single  class  of 
individuals   or  objects,  when   the   classification  is  founded  upon  some 


255  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  25 

natural,  intrinsic,  or  constitutional  distinction,  is  a  general  law. 
(Abeel  v.  Clark,  84  Cal.  226,  24  Pac.  383;  Cody  v.  Mnrphey,  89  Cal. 
522,  26  Pac.  1081;  Foster  v.  Police  Commrs.,  102  Cal.  483,  41  Am.  St. 
Eep.  194,  37  Pac.  763;  Rode  v.  Siebe,  119  Cal.  518,  39  L.  R.  A.  342,  51 
Pac.  869;  Ex  parte  Koser,  60  Cal.  177;  Vail  v.  San  Diego,  126  Cal.  35, 
58  Pac.  392;  People  v.  Central  Pac.  R.  R.  Co.,  105  Cal.  576,  38  Pac.  905; 
affirmed  Central  Pac.  R.  Co.  v.  California,  162  U.  S.  91,  40  L.  Ed.  903, 
16  Sup.  Ct.  Rep.  766;  Murphy  v.  Pacific  Bank,  1 19  Cal.  334,  51  Pac.  317; 
Murphy  v.  Pacific  Bank,  130  Cal.  542,  62  Pac.  1059;  Ruperich  v.  Baehr, 
142  Cal.  190,  75  Pac.  782;  In  re  Finley,  1  Cal.  App.  198,  81  Pae.  1041; 
In  re  Martin,  157  Cal.  51,  26  L.  R.  A.  (N.  S.)  242,  106  Pac.  235.) 

in  order  to  make  the  law  general,  the  classification  must  not  be 
arbitrary,  but  must  be  founded  upon  some  natural,  intrinsic,  or  con- 
stitutional distinction,  and  some  reason  must  appear  why  the  act  is 
noi  made  to  apply  generally  to  all  classes.  (Rauer  v.  Williams,  118 
Cal.  401,  50  Pac.  691;  Darcy  v.  Mayor,  104  Cal.  642,  38  Pac.  500.) 

Although  a  law  is  general  when  it  applies  equally  to  all  individuals 
of  a  class  founded  upon  a  natural,  intrinsic,  or  constitutional  distinc- 
tion, it  is  not  general  if  it  confers  particular  privileges  or  imposes 
peculiar  disabilities  or  burdensome  conditions,  in  the  exercise  of  a 
common  right,  upon  a  class  arbitrarily  selected  from  the  general  body 
of  those  who  stand  in  precisely  the  same  relation  to  the  subject  of 
the  law.  (Pasadena  v.  Stimson,  91  Cal.  238,  27  Pac.  604;  Bloss  v. 
Lewis,  109  Cal.  493,  41  Pac.  1081.) 

A  law  which  applies  only  to  a  part  of  a  class — which  relates  not  to 
any  genus,  but  only  to  species — is  a  special  law.  (People  v.  Central 
Pac.  R.  R.  Co.,  83  Cal.  393,  23  Pae.  303.) 

There  is  no  reasonable  foundation  in  the  nature  of  things  or  such 
intrinsic  difference  betvreen  corporations  and  natural  persons  that  re- 
quires the  application  of  a  measure  of  jurisdiction  of  an  offense  com- 
mitted by  a  corporation  different  from  that  to  be  invoked  when  an 
individual  is  charged  with  the  same  offense.  (People  v.  Palermo 
L.  &  W.  Co.,  4  Cal.  App.  717,  89  Pac.  723.) 

As  to  when  an  entire  act  will  not  be  affected  by  the  fact  that  one 
provision  thereof  is  special,  see  Davidson  v.  Von  Detten,  139  Cal. 
467,   73  Pac.  189. 

What  is  special  legislation  forbidden  by  Constitution.  See  note, 
21  Am.  St.  Rep.  780. 

Inhibition  of  local  or  special  law  where  general  law  can  be  made 
applicable.     See  note,  93  Am.  St.  Rep.   106. 

Province  of  legislature  to  determine  whether  special  law  is  neces- 
sary in  given  case.     See  note,  6  Ann.  Cas.  926. 

Acts  held  to  be  general. — The  following  acts  have  been  held  to  be 
general  within  the  meaning  of  this  section:  An  act  relating  to  elec- 
tions to  elect  boards  of  freeholders,  and  to  adopt  and  amend  charters 
(Fragley  v.  Phelan,  126  Cal.  383,  58  Pac.  923);  an  act  providing  for 
jiolice  courts  in  all  cities  of  a  designated  population,  and  providing 
that  it  shall  go  into  effect  upon  the  expiration  of  the  term  of  office  of 
the  present  police  judge  of  such  cities  (People  v.  Heushaw,  76  Cal. 
-136,  18  Pac.  413;  Ex  parte  Halsted,  89  Cal.  471,  26  Pac.  961;  In  re 
Mitchell,  120  Cal.  384,  52  Pac.  799);  an  act  applying  to  all  elections  in 


Art.  IV,  §  25  CONSTITUTION  OF  1879.  256 

towns  and  cities  (Vernon  School  Dist.  v.  Board  of  Education,  125 
Cal.  593,  58  Pac.  175);  an  act  providing  for  an  action  by  a  reclama- 
tion district  to  determine  the  validity  of  an  assessment  (Lower  Kings 
River  Reclamation  Diat.  No.  531  v.  McCullah,  124  Cal.  175,  56  Pac. 
887);  the  insanity  law  of  1897  (People  v.  King,  127  Cal.  570,  60  Pac. 
35);  section  1203  of  the  Code  of  Civil  Procedure  (Carpenter  v.  Furrey, 
128  Cal.  665,  61  Pac.  369);  an  act  providing  a  special  method  for 
levying  a  tax  for  high  schools,  different  from  that  provided  for  other 
school  districts  (People  v.  Lodi  High  School  Dist.,  124  Cal.  694,  57 
Pac.  660);  an  act  providing  for  the  refunding  of  indebtedness  of 
municipal  corporations  other  than  cities  of  the  first  class  (Los  Angeles 
V.  Teed,  112  Cal.  319,  44  Pac.  580;  Waite  v.  Santa  Cruz,  184  U.  S. 
302,  46  L.  Ed.  552,  22  Sup.  Ct.  Rep.  327);  an  act  providing  for  the 
assessment  of  taxes  upon  railroads  operating  in  more  than  one  county 
(People  V.  Central  Pac.  R.  R.  Co.,  105  Cal.  576,  38  Pac.  905;  affirmed. 
Central  Pac.  R.  Co.  v.  California,  162  U.  S.  91,  40  L.  Ed.  903,  16  Sup. 
Ct.  Rep.  766) ;  a  law  making  it  a  felony  to  sell  intoxicating  liquors 
to  Indians  (People  v.  Bray,  105  Cal.  344,  27  L.  R.  A.  158,  38  Pac.  731); 
an  act  providing  for  vaccination  of  all  children  attending  public 
schools  (Abeel  v.  Clark,  84  Cal.  226,  24  Pac.  383;  French  v.  Davidson, 
143  Cal.  658,  77  Pac.  663) ;  an  act  relating  to  the  compensation  of  the 
auditor  and  his  clerk  in  all  counties  of  the  twentieth  class  (Farnum 
V.  Warner,  104  Cal.  677,  38  Pac.  421);  an  act  forbidding  the  erection 
of  partition  walls  in  cities  and  towns  of  a  greater  height  than  ten 
feet,  without  the  consent  of  the  adjoining  owner,  except  around  public 
gardens,  etc.  (Western  etc.  Co.  v.  Knickerbocker,  103  Cal.  Ill,  37 
Pac.  192) ;  the  pro-visions  of  section  1001  of  the  Civil  Code,  provid- 
ing for  the  acquisition  of  private  property  through  the  exercise  of 
the  right  of  eminent  domain  (Santa  Cruz  v.  Enright,  95  Cal.  105,  30 
Pac.  197);  a  county  ordinance  providing  a  smaller  license  tax  for  the 
sale  of  spirituous  liquors  at  wayside  inns  and  rural  watering  places, 
outside  of  any  city,  than  when  sold  in  a  city  (Amador  Co.  v.  Kennedy, 
70  Cal.  458,  11  Pac.  757);  an  ordinance  making  it  unlawful  to  con- 
duct a  laundry  between  10  P.  M.  and  6  A.  M.,  or  on  Sundays  (Ex 
parte  Moynier,  65  Cal.  33,  2  Pac.  728);  the  provision  of  the  Code  of 
Civil  Procedure  giving  certain  laborers  preferred  claims  as  against 
other  attaching  creditors  (Mohle  v.  Tschirch,  63  Cal.  381);  a  law  re- 
quiring insane  persons  in  state  institutions  to  be  supported  out  of 
their  estates  (Estate  of  Yturburru,  134  Cal.  567,  66  Pac.  729);  an  act 
relating  to  license  taxes  in  cities  of  a  particular  class  (Ex  parte  Jack- 
son, 143  Cal.  564,  77  Pac.  457);  the  collateral  inheritance  tax  act  tax- 
ing brothers  and  sisters,  and  exempting  the  wife  of  a  son,  the  widow 
of  a  son,  and  the  husband  of  a  daughter,  the  classification  being  based 
on  a  natural  distinction  (Estate  of  Campbell,  143  Cal.  623,  77  Pac. 
674) ;  an  act  providing  that  in  divorce  suits  the  final  decree  shall  not 
be  entered  until  the  expiration  of  one  year  from  the  filing  of  the 
decision  (Deyoe  v.  Superior  Court,  140  Cal.  476,  98  Am.  St.  Rep.  73, 
74  Pac.  28) ;  the  act  providing  for  the  application  of  the  salaries  of 
public  officers  to  the  payment  of  their  debts  (Ruperich  v.  Baehr,  142 
Cal.  190,  75  Pac.  782);  section  1143  of  the  Penal  Code  relating  to  fees 
of  jurors  in  criminal  actions  (Jackson  v.  Baehr,  138  Cal.  266,  71  Pac. 
167);  the  provision  of  section  1373  of  the  Political  Code,  making  the 


I 


257  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  25 

county  in  which  the  indictment  was  found  chargeable  with  the  sup- 
port of  insane  criminals  (Napa  State  Hospital  v.  Yuba  County,  138 
Cal.  378,  71  Pac.  450) ;  the  provisions  of  the  Political  Code  in  regard 
to  road  taxes,  although  cities  and  towns  are  exempted  from  their 
operation,  since  this  does  not  exempt  cities  and  towns  from  the  tax, 
but  compels  cities  and  towns  to  maintain  their  streets  under  the  street 
improvement  act  (Miller  v.  Countj'  of  Kern,  137  Cal.  516,  70  Pac. 
549) ;  an  act  applying  to  all  foreign  corporations  and  providing  for 
filing  designation  of  agents,  service  of  process  and  proof  of  corporate 
existence  (Anglo-Californian  Bank  v.  Field,  146  Cal.  644,  80  Pac. 
lOSO);  the  act  of  1901  authorizing  suits  against  the  state  upon  coyote 
bounty  claims  (Bickerdike  v.  State  of  California,  144  Cal.  681,  78  Pac. 
270);  the  act  of  April  23,  1880  (Stats.  1880,  p.  131),  forbidding  the 
acquisition  or  sale  of  mining  ground  by  mining  corporations  without 
the  assent  of  two-thirds  of  its  stockholders  (Lacy  v.  Gunn,  144  Cal. 
511,  78  Pac.  30);  the  state  dental  law  classifying  those  who  may 
practice  dentistry,  as  it  does  not  discriminate  between  persons  within 
the  same  class  (Ex  parte  Whitley,  144  Cal.  167,  1  Ann.  Cas.  13,  77 
Pac.  879);  section  3443  of  the  Political  Code  requiring  the  complaint 
to  set  forth  certain  papers,  such  provision  being  justified  by  the  na- 
ture and  object  of  the  act  (Boggs  v.  Gaueard,  148  Cal.  711,  84  Pac. 
195) ;  acts  providing  two  independent  schemes,  to  either  of  which  a 
municipality  may  have  resort  as  it  shall  deem  expedient  in  the  ac- 
quisition of  land  for  park  purposes  (Oakland  v.  Thompson,  151  Cal. 
572,  91  Pac.  387);  a  law  forbidding  the  employment  of  children  under 
the  age  of  sixteen  years  in  dangerous  or  immoral  places  (In  re  Weber, 
149  Cal.  392,  86  Pac.  809) ;  the  provision  of  the  child  labor  law  per- 
mitting the  employment  of  children  whose  parents  are  unable  to  labor 
from  sickness  (In  re  Spencer,  149  Cal.  396,  117  Am.  St.  Rep.  137,  9 
Ann.  Cas.  1105,  86  Pac.  896) ;  the  provision  of  the  child  labor  law  per- 
mitting the  employment  of  children  during  vacations  upon  the  permit 
of  the  school  principal  (In  re  Spencer,  149  Cal.  396,  117  Am.  St.  Rep. 
137,  9  Ann.  Cas.  1105,  86  Pac.  896);  an  act  forbidding  the  employment 
of  children  in  singing  or  playing  on  musical  instruments,  except  in 
churches,  schools  or  academies  (In  re  Weber,  149  Cal.  392,  86  Pac. 
809) ;  the  act  providing  for  the  establishment  of  titles  to  land 
when  the  records  were  destroyed  by  fire,  though  it  makes  pro- 
visions regulating  practice  which  are  not  found  in  other  judicial  pro- 
ceedings (Title  etc.  Restoration  Co.  v.  Kerrigan,  150  Cal.  289,  119 
Am.  St.  Rep.  199,  8  L.  R.  A.  (N.  S.)  682,  88  Pac.  356);  the  act  pro- 
viding for  the  establishment  of  titles  when  the  records  are  destroyed 
by  earthquake,  fire,  or  flood  and  not  covering  destruction  by  other 
agencies  (Title  etc.  Restoration  Co.  v.  Kerrigan,  150  Cal.  289,  119 
Am.  St.  Rep.  199,  8  L.  R.  A.  (N.  S.)  682,  88  Pac.  356);  a  curative  act 
as  to  all  tax  deeds  defective  in  not  stating  the  time  allowed  for  re- 
demption (Baird  v.  Monroe,  150  Cal.  560,  89  Pac.  352);  the  law  re- 
quiring electors  to  declare  their  party  affiliation  when  registering 
which  does  not  apply  to  persons  who  registered  before  its  enactment 
(Schostay  v.  Cator,  151  Cal.  600,  91  Pac.  502);  an  act  granting  power 
to  cities  of  a  particular  class  to  acquire  waterworks  (Cary  v.  Blod- 
gett,  10  Cal.  App.  463,  102  Pac.  668);  an  ordinance  forbidding  the 
Constitution — 17 


Art.  IV,  §  25  CONSTITUTION  OF  1879.  258 

maintenance  of  public  billiard  and  pool  rooms,  but  permitting  private 
billiard-rooms,  and  billiard-rooms  in  hotels  for  bona  fide  guests  only 
(Ex  parte  Murphy,  8  Cal.  App.  440,  97  Pac.  199);  section  710  of  the 
Code  of  Civil  Procedure,  providing  for  the  garnishment  of  the  salaries 
of  certain  public  officers  at  the  instance  of  their  judgment  creditors 
(Lawson  v.  Lawson,  158  Cal.  446,  111  Pac.  354);  an  act  to  provide  for 
laying  out,  opening,  etc.,  any  street,  etc.  (Stats.  1889,  p.  70),  (Clute  v. 
Turner,  157  Cal.  73,  106  Pac.  240) ;  an  act  regulating  the  hours  of 
employment  in  underground  mines  and  in  smelting  and  reduction 
works  (In  re  Martin,  157  Cal.  51,  26  L.  E.  A.  (N.  S.)  242,  106  Pac. 
235);  an  act  forbidding  the  employment  of  women  for  more  than 
eight  hours  a  day  in  certain  places  (In  re  Miller,  162  Cal.  687,  124  Pac. 
427;  affirmed  in  Miller  v.  Wilson,  236  U.  S.  373,  59  L.  Ed.  628,  35  Sup. 
Ct.  Eep.  342;  the  amendment  of  1911  to  section  395  of  the  Code  of 
Civil  Procedure  regulating  the  place  of  trial  of  actions  (Gridlej^  v. 
Fellows,  166  Cal.  765,  138  Pac.  355) ;  an  act  providing  for  the  improve- 
ment of  public  streets  in  municipalities  in  cases  where  any  damage  to 
private  property  would  result  from  such  improvement,  and  for  the 
assessment  of  the  costs,  damages  and  expenses  thereof  upon  the  prop- 
erty benefited  thereby  (Title  Ins.  &  Trust  Co.  v.  Lusk,  15  Cal.  App. 
358,  115  Pac.  53);  "An  act  to  prohibit  the  formation  and  existence  of 
secret  oath-bound  fraternities  in  the  public  schools"  (Bradford  v. 
Board  of  Education,  18  Cal.  App.  19,  121  Pac.  929);  an  act  regulating 
the  care  of  dependent  and  delinquent  children  until  twenty-one  years 
of  age  (Moore  v.  Williams,  19  Cal.  App.  600,  127  Pac.  509);  an  act 
concerning  actions  for  libel  and  slander  which  allows  either  party 
prevailing  in  such  actions  to  recover  as  costs  one  hundred  dollars  to 
cover  counsel  fees  (Engel  v.  Ehret,  21  Cal.  App.  112,  130  Pac.  1197). 

The  proviso  in  the  amendment  of  June  9,  1911,  to  section  1249  of 
the  Code  of  Civil  Procedure,  which  provided  that  nothing  in  the  sec- 
tion, which  affected  the  date  with,  respect  to  which  compensation  in 
condemnation  suits  should  be  assessed,  should  be  held  to  affect  pend- 
ing litigation.  (Vallejo  etc.  R.  R.  Co.  v.  Eeed  Orchard  Co.,  169  Cal, 
545,    147   Pac.   238.) 

What  are  general  statutes.     See  note,  21  Am.  St.  Eep.  780. 

See,  also,  cases  cited  below  under  the  particular  subdivisions  of 
this  section. 

Acts  held  to  be  special. — On  the  other  hand,  the  following  acts  have 
been  held  to  be  special  within  the  meaning  of  this  section:  An  act 
providing  for  boards  of  election  commissioners  in  cities  and  counties 
having  one  hundred  and  fifty  thousand  or  more  inhabitants,  that  being 
an  arbitrary  classification  without  reference  to  the  existing  classifica- 
tion by  general  law  (Denman  v.  Broderick,  111  Cal.  96,  43  Pac.  516); 
the  "McClure  Charter,"  because  it  only  applied  to  consolidated  city 
and  county  governments  of  a  designated  population  (Desmond  v, 
Dunn,  55  Cal.  242);  a  provision  of  the  County  Government  Act  pro- 
viding for  salaries  in  addition  to  fees  of  constables  in  townships  num- 
bered one  to  ten  in  counties  of  one  particular  class  (Lougher  v.  Soto, 
129  Cal.  610,  62  Pac.  184);  an  act  giving  laborers  employed  by  cor- 
porations by  the  week  or  month  a  lien  for  wages  (Slocum  v.  Bear 
Valley  Irr.  Co.,  122  Cal.  555,  68  Am.  St.  Eep.  68,  55  Pac.  403);  a  law 


III 


25D  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  25 

aepriving  certain  persons  arbitrarily  of  the  right  to  participate  in  an 
election  (Spier  v.  Baker,  120  Cal.  370,  41  L.  R.  A.  196,  52  Pac.  659); 
au  act  directed  at  and  applicable  to  one  particular  named  municipal 
corporation,  and  taking  away  a  large  part  of  its  territory  (People  v. 
Common  Council,  85  Cal.  369,  24  Pac.  727;  Fisher  v.  Police  Court, 
86  Cal.  158,  24  Pac.  1000) ;  an  act  to  remedy  the  failure  on  the  part 
of  the  tax  collector  to  publish  the  names  of  the  owners,  etc.  (Moore 
V.  Patch,  12  Cal.  265);  the  provision  of  section  1203  of  the  Code  of 
Civil  Procedure,  requiring  contractors  for  the  erection  of  buildings 
to  secure  their  contracts  by  bonds  (Shaughnessy  v.  American  Surety 
Co.,  138  Cal.  543,  69  Pac.  250,  71  Pac.  701);  a  law  regulating  the  rate 
of  interest  on  chattel  mortgages  on  certain  classes  of  property  only. 
(Ex  parte  Sohncke,  148  Cal.  262,  113  Am.  St.  Eep.  236,  7  Ann.  Cas, 
475,  2  L.  R.  A.  (N.  S.),  813,  82  Pac.  956);  the  provision  of  the  me- 
chanic's lien  law  allowing  the  plaintiff,  but  not  the  defendant,  an  at- 
torney's fee  (Builders'  Supply  Depot  v.  O'Connor,  150  Cal.  265,  119 
Am.  St.  Rep.  193,  11  Ann.  Cas.  712,  17  L.  R.  A.  (N.  S.)  909,  88  Pac. 
982) ;  the  amendment  of  1911  to  section  4256  of  the  Political  Code  fix- 
ing the  compensation  of  justices  of  the  peace  and  providing  that  a 
stenographer  shall  be  appointed  by  the  judge  of  the  superior  court, 
with  the  duties  to  report  the  proceedings  at  preliminary  examinations 
and  coroner's  inquests,  at  a  certain  salary  to  be  paid  out  of  the  county 
treasury,  in  the  same  manner  and  at  the  same  time  as  other  salaries 
are  paid  (Payne  v.  Murphy,  18  Cal.  App.  446,  123  Pac.  350);  section 
1349  of  the  Code  of  Civil  Procedure,  as  amended  in  1907,  providing 
that  in  the  order  admitting  the  will  to  probate  "the  court  must  ascer- 
tain and  determine  whether  said  estate  is  worth  more  or  less  than 
ten  thousand  dollars,  which  determination  is  conclusive  for  the  pur- 
pose of  giving  notice  to  creditors"  (Estate  of  Becker,  20  Cal.  App. 
513,  129  Pac.  795). 

See,  also,  cases  cited  below  under  particular  subdivisions  of  this 
section. 

Subdivision  1. — An  act  establishing  an  additional  police  court  in 
San  Francisco,  with  the  same  jurisdiction,  and  to  be  governed  by  the 
same  rules  as  the  court  already  existing,  is  not  a  special  law.  (Ex 
parte  Jordan,  62  Cal.  464.) 

This  subdivision  does  not  apply  to  the  terms  of  oflSce  of  justices  of 
the  peace.     (Kahn  v.  Sutro,  114  Cal.  316,  33  L.  R.  A.  620,  46  Pac.  87.) 

An  act  creating  a  justice's  court  for  one  particular  named  town  and 
fixing  its  jurisdiction  is  a  special  law.  (Minor  v.  Justice's  Court,  121 
Cal.  264,  53  Pac.   795.) 

An  act  creating  a  police  court  for  cities  of  one  class  is  constitu- 
tional.    (Union  etc.  Co.  v.  Rose,  11  Cal.  App.  357,  104  Pac.  1006.) 

Subdivision  2. — An  act  making  it  a  misdemeanor  "for  any  person 
engaged  in  the  business  of  baking  to  engage,  or  to  permit  others  in 
his  employ  to  engage,  in  the  business  of  baking  for  the  purpose  of 
sale,  between  the  hours  of  6  o'clock  P.  M.  on  Saturday  and  6  o'clock 
P.  M.  on  Sunday,"  is  a  special  law.  (Ex  parte  Wcsterfield,  55  Cal. 
550,  36  Am.  Rep.  47.) 

An  act  making  it  unlawful  to  keep  open  any  place  of  business  on 
Sunday,   but   exempting   hotels,   boarding-houses,   barber-shops,   baths, 


Art.  IV,  §  25  CONSTITUTION  OF  1879.  260 

markets,  restaurants,  taverns,  livery-stables,  and  retail  drug-stores, 
held  not  to  be  a  special  law.     (Ex  parte  Koser,  60  Cal.  117.) 

This  section  does  not  prohibit  the  legislature  from  authorizing  by 
general  laws  ordinances  which  would  be  special  laws  if  enacted  by  the 
legislature  directly.     (Ex  parte  Chin  Yan,  60  Cal.  78.) 

An  act  allowing  certain  convicts  in  the  city  and  county  of  San 
Francisco  to  be  imprisoned  in  the  house  of  correction  instead  of  the 
county  jail  or  state  prison  does  not  violate  this  subdivision.  (Ex 
parte  Williams,  87  Cal.  78,  24  Pac.  602,  25  Pac.  248.) 

An  act  establishing  an  additional  police  court  in  San  Francisco, 
with  the  same  jurisdiction  and  to  be  governed  by  the  same  rules  as 
the  court  already  existing,  is  not  a  special  law.  (Ex  parte  Jordan,  62 
Cal.  464.) 

An  act  making  it  a  misdemeanor  to  keep  open  a  barber-shop  on 
Sundays  and  other  holidays  is  special  legislation.  (Ex  parte  Jentzsch, 
112  Cal.  468,  32  L.  E.  A.  664,  44  Pac.  803.) 

Section  636%  of  the  Penal  Code,  which  prohibits  the  use  of  certain 
kinds  of  nets  in  fishing,  is  not  a  special  law  in  its  application  to  the 
sixth  fish  and  game  district.  (Matter  of  Application  of  Mascolo,  25 
Cal.  App.  92,  142  Pac.  903.) 

Section  636%  of  the  Penal  Code  is  not  invalid  because  of  this  sec- 
tion of  the  Constitution,  since  it  is  qualified  and  limited  by  section 
25%  of  article  IV  subsequently  adopted.  (Matter  of  Application  of 
Mascolo,  25  Cal.  App.  92,  142  Pac.  903.) 

Subdivision  3. — A  provision  in  the  municipal  corporation  act  that 
in  cities  of  one  class  it  shall  not  be  necessary  to  plead  or  prove  the 
existence  or  validity  of  any  ordinance  thereof,  and  that  courts  shall 
take  judicial  notice  thereof,  is  special  legislation.  (City  of  Tulare  v. 
Hevren,  126  Cal.  226,  58  Pac.  530.) 

A  provision  in  the  act  supplemental  to  the  "Wright  Act,"  that  in  a 
proceeding  to  confirm  the  organization  and  bonds  of  an  irrigation 
district  "a  motion  for  a  new  trial  must  be  made  upon  the  minutes  of 
the  court,"  is  repugnant  to  this  provision.  (Cullen  v.  Glendora  Water 
Co.,  113  Cal.  503,  39  Pac.  769,  45  Pac.  822.) 

The  ''Banking  Commissioners'  Act,"  providing  for  the  winding  up 
of  banking  corporations,  and  to  that  extent  superseding  the  provi- 
sions of  the  general  Insolvent  Act,  is  constitutional.  (People  v.  Su- 
perior Court,  100  Cal.  105,  34  Pac.  492.) 

An  act  providing  the  form  of  a  complaint  in  an  action  to  condemn 
land  is  valid.     (San  Francisco  v.  Kiernan,  98  Cal.  614,  33  Pac.  720.) 

An  act  requiring  an  undertaking  on  the  part  of  the  plaintiff  in  ac- 
tions of  libel  and  slander  is  not  a  special  law.  (Smith  v.  McDermott, 
93  Cal.  421,  29  Pac.  34.) 

The  word  "practice"  includes  all  "pleadings."  (People  v.  Central 
Pac.  E.  E.  Co.,  83  Cal.  393,  23  Pac.  303.) 

Section  437a  of  the  Code  of  Civil  Procedure,  providing  that  when 
an  insurance  company  claims  exemption  from  liability  on  the  ground 
that,  although  the  loss  was  proximately  caused  by  a  peril  insured 
against,  still  it  would  not  have  occurred  but  for  a  peril  excepted  in 
the  contract,  it  must  set  forth  the  facts  constituting  this  defense,  in 
detail,  in  its  answer,  is  in  violation  of  this  section.  (Board  of  Edu- 
cation V.   Alliance  Assur.  Co.,   159  Fed.  994.) 


261  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  25 

A  law  providing  for  a  special  form  of  complaint  in  an  action  to 
recover  an  assessment  of  taxes  against  a  railroad  situated  in  more 
than  one  county  is  in  violation  of  this  section.  (People  v.  Central 
Pac.  K.  E.  Co.,  83  Cal.  393,  23  Pac.  303.  But  see  People  v.  Central 
Pac.  E.  E.  Co.,  105  Cal.  576,  38  Pac.  905;  affirmed.  Central  Pac.  E.  Co. 
V.  California,  162  U.  S.  91,  40  L.  Ed.  903,  16  Sup.  Ct.  Eep.  766.) 

An  act  allowing  certain  convicts  in  the  city  and  county  of  San 
Francisco  to  be  imprisoned  in  the  house  of  correction  instead  of  the 
county  jail  or  state  prison  does  not  violate  this  subdivision.  (Ex 
parte  Williams,  87  Cal.  78,  24  Pac.  602,  25  Pac.  248.) 

An  act  establishing  an  additional  police  court  in  San  Francisco, 
with  the  same  jurisdiction  and  to  be  governed  by  the  same  rules  as 
the  court  already  existing,  is  not  a  special  law.  (Ex  parte  Jordan, 
62  Cal.  464.) 

A  provision  of  the  act  of  March  6,  1905,  providing  for  the  levy 
of  assessments  upon  a  district  to  pay  for  lighting  the  streets  therein, 
which  provides  that  any  appeal  from  a  final  judgment  in  an  action 
or  proceeding  contesting  the  validity  of  an  assessment  to  light  public 
streets  must  be  perfected  within  thirty  days  after  entry  of  judgment, 
is  constitutional.  (Cohen  v.  City  of  Alameda,  168  Cal.  265,  142  Pac. 
885.) 

Under  this  section,  section  682  of  the  Penal  Code  cannot  be  con- 
strued as  authorizing  the  prosecution  and  trial  of  a  person  charged 
with  causing  and  contributing  to  the  dependency  of  a  female  under 
21,  on  a  verified  complaint  filed  in  the  superior  court.  (People  v. 
Budd,   24   Cal.   App.   176,   140  P«c.   714.) 

Subdivision  6. — Under  this  subdivision  the  legislature  cannot  by 
special  law  change  the  name  of  a  corporation,  but  may  by  general  law 
provide  for  such  change  by  the  superior  court  upon  application  of  the 
incorporators.  (Matter  of  La  Societe  Francaise,  etc.,  123  Cal.  525,  56 
Pac.  458.) 

Subdivision  7. — The  act  of  1891  supplemental  to  the  Vrooman  Act, 
relating  to  street  work  in  all  municipalities,  is  a  general  law.  (Hell- 
man  V.  Shoulters,  114  Cal.  136,  44  Pac.  915,  45  Pac.  1057.) 

Subdivision  9. — A  law  providing  that,  in  counties  of  one  particular 
class  only,  witnesses  in  criminal  cases  shall  be  entitled  to  the  same 
fees  as  jurors,  in  the  discretion  of  the  court,  is  special.  (Turner  v. 
Siskiyou  Co.,  109  Cal.  332,  42  Pac.  434.) 

A  provision  of  the  County  Government  Act,  that  in  counties  of  a 
certain  class  county  licenses  collected  in  cities  shall  be  paid  into  the 
treasuries  of  such  cities  for  street  improvements,  is  in  violation  of 
this  subdivision.  (San  Luis  Obispo  v.  Graves,  84  Cal.  71,  23  Pac. 
1032.) 

The  provisions  of  the  County  Government  Act  of  1893  empower- 
ing certain  of  the  county  officers  in  counties  of  one  class  to  appoint 
a  certain  number  of  deputies,  whose  salaries  are  fixed  by  the  act  and 
made  payable  out  of  the  county  treasury,  is  valid,  although  in  oiher 
counties  the  principals  must  pay  the  salaries  of  their  deputies.  (Tu- 
lare Co.  v.  May,  118  Cal.  303,  50  Pac.  427;  Freeman  v.  Barnum,  131 
Cal.   386,   82   Am.   St.   Eep.   355,   63   Pac.   691.     Welsh   v.   Bramlet,   98 


Art.  IV,  §  25  CONSTITUTION  OF  1879.  262 

Cal.  219,  33  Pac.  66,  and  Walser  v.  Austin,  104  Cal.  128,  37  P«    869, 
overruled.) 

An  act  directing  the  municipality  to  pay  a  particular  claim  against 
it  is  in  violation  of  this  provision.  (Conlin  v.  Supervisors,  114  Cal. 
404,  33  L.  E.  A.  752,  46  Pac.  279.) 

A  law  providing  for  the  payment  by  the  state,  county  or  city  of  the 
premium  on  official  bonds  of  all  state,  county  or  city  officers  (except 
notaries  public)  when  given  by  surety  companies  is  not  in  violation 
of  this  section.  (County  of  San  Luis  Obispo  v.  Murphy,  162  Cal.  588, 
Ann.  Cas.  1913D,  712,  123  Pac.  808.) 

The  act  of  March  18,  1911,  authorizing  the  respective  counties  and 
municipalities  of  the  state  to  appoint  sealers  of  weights  and  measures, 
is  not  a  special  law  within  the  meaning  of  this  section.  (Scott  v. 
Boyle,  164  Cal.  321,  128  Pac.  941.) 

Subdivision  10. — A  law  providing  that  taxes  upon  personal  property 
unsecured  by  real  estate  shall  be  collected  at  the  time  of  the  assess- 
ment, and  before  the  time  provided  for  the  collection  of  taxes  upon 
other  property,  is  valid.  (Rode  v.  Siebe,  119  Cal.  518,  39  L.  R.  A. 
342,  51  Pac.  869,  Van  Fleet,  J.,  and  Harrison,  J.,  dissenting;  Pacific 
Postal  etc.  Co.  v.  Dalton,  119  Cal.  604,  51  Pac.  1072.) 

Section  10  of  article  XIII  of  the  Constitution  is  not  "a  local  or 
special  law"  passed  by  the  legislature.  (San  Francisco  etc.  R.  R.  Co. 
V.  State  Board,  60  Cal.  12.) 

A  law  providing  a  special  method  of  assessment  and  collection  of 
taxes  against  railroads  situated  in  more  than  one  county  is  special 
legislation.  (People  v.  Central  Pac.  R.  R.  Co.,  83  Cal.  393,  23  Pac. 
303.  But  see  People  v.  Central  Pac.  R.  R.  Co.,  105  Cal.  576,  38  Pac. 
905;  affirmed,  Central  Pac.  R.  Co,  v.  California,  162  U.  S.  91,  40  L.  Ed. 
903,  16  Sup.  Ct.  Rep.  766.) 

The  Motor  Vehicle  Act  of  1913,  which  includes  San  Francisco  as  a 
county  for  the  purposes  of  the  act  and  excludes  all  other  cities,  is 
valid.  (In  re  Schuler,  167  Cal.  282,  Ann.  Cas.  1915C,  706,  139  Pac. 
685.) 

Subdivision  11. — In  forming  a  new  county  the  legislature  may  make 
special  provisions  as  to  the  first  election  to  be  held  in  it,  and  as  to 
all  things  which  must  be  done  in  order  to  complete  the  organization 
and  preserve  the  orderly  and  harmonious  administration  of  the  laws 
therein.  (People  v.  McFadden,  81  Cal.  489,  15  Am.  St.  Rep.  66,  22 
Pac.  851.) 

A  law  creating  and  providing  for  the  organization  of  a  new  county 
is  not  within  the  prohibition  against  special  and  local  legislation. 
(People  V.  Glenn  Co.,  100  Cal.  419,  38  Am.  St.  Rep.  305,  35  Pac.  302.) 
An  act  creating  a  new  county  may  provide  for  the  collection  of 
taxes  levied  before  the  formation  of  the  county,  but  collected  after- 
ward.    (Kings  County  v.  Johnson,  104  Cal.  198,  37  Pac.  870.) 

The  Primary  Election  Law  of  1895,  being  expressly  confined  in  its 
operation  to  counties  of  the  first  and  second  class,  is  local  and  special. 
(Marsh  v.  Supervisors,  111  Cal.  368,  43  Pac.  975.) 

Subdivision  13. — A  law  providing  a  special  method  of  assessment 
ana  collection  of  taxes  against  railroads  situated  in  more  than  one 
county  is   special  legislation.     (People   v.   Central  Pac.  E.  E.  Co.,  83 


263  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  25 

Cal.  393,  23  Pac.  303.  But  see  People  v.  Central  Pae.  R.  R.  Co.,  105 
Cal.  576,  38  Pac.  905;  affirmed,  Central  Pac.  R.  Co.  v.  California,  162 
U.  S.  91,  40  L.  Ed.  903,  16  Sup.  Ct.  Rep.  766.) 

Subdivision  14. — An  act  validating  bonds  of  municipalities  when 
authorized  by  two-thirds  of  the  inhabitants  of  the  county  is  not  a 
special  law.     (Redlands  v.  Brook,  151  Cal.  474,  91  Pac.  150.) 

Subdivision  16. — An  act  attempting  retroactivelj'^  to  exempt  resi- 
dent nephews  and  nieces  from  the  paj^ment  of  unpaid  taxes  upon 
collateral  inheritances  is  in  violation  of  this  provision.  (Estate  of 
Stanford,  126  Cal.  112,  45  L.  R.  A.  788,  54  Pac.  259,  58  Pac.  462.) 

Subdivision  19.— Tulare  Co.  v.  May,  118  Cal.  303,  50  Pac.  427; 
People  V.  Superior  Court,  100  Cal.  105,  34  Pac.  492. 

Subdivision  20. — A  law  providing  a  special  method  of  assessment  and 
collection  of  taxes  against  railroads  situated  in  more  than  one  county 
is  special  legislation.  (People  v.  Central  Pac.  R.  R.  Co.,  83  Cal.  393, 
23  Pac.  303.  But  see  People  v.  Central  Pac.  R.  R.  Co.,  105  Cal.  576, 
38  Pac.  905;  affirmed.  Central  Pac.  R.  Co.  v.  California,  162  U.  S.  91, 
40  L.  Ed.  903,  16  Sup.  Ct.  Rep.  766. 

Sections  1670  and  1671  of  the  Political  Code,  as  they  existed  prior 
to  the  amendments  of  1909,  exempting  the  property  in  a  union  high 
school  district  from  taxation  for  the  support  of  a  county  high  school, 
were  not  in  violation  of  this  section.  (Wood  v.  County  of  Calaveras, 
164  Cal.  398,  129  Pac.  283.) 

Subdivision  23. — An  act  making  it  a  misdemeanor  for  a  pawn- 
broker to  charge  or  receive  more  than  two  per  cent  per  month  interest 
is  not  a  special  law.  (Ex  parte  Lichenstein,  67  Cal.  359,  56  Am.  Rep. 
713,  7  Pac.  728.) 

Subdivision  24.— People  v.  Central  Pac.  R.  R.  Co.,  83  Cal.  393,  23 
Pac.  303;  People  v.  Central  Pac.  R.  R.  Co.,  105  Cal.  576,  38  Pac.  905, 
affirmed,  Central  Pac.  R.  Co.  v.  California,  162  U.  S.  91,  40  L.  Ed. 
903,  16  Sup.  Ct.  Rep.  766. 

Subdivision  27. — The  fixing  of  salaries  of  teachers  is  part  of  the 
"management  of  the  common  schools."  (Earle  v.  Board  of  Educa- 
tion, 55  CaL  489.) 

An  act  relating  to  salaries  of  school  teachers  in  cities  having  one 
hundred  thousand  inhabitants  or  more  is  local  and  unconstitutional. 
(Earle  v.  Board  of  Education,  55  Cal.  489.) 

An  act  providing  that  in  cities  having  a  board  of  education  the 
city  treasurer  is  to  have  the  custody  of  the  state  and  county  school 
money  appropriated  to  the  city  is  a  special  law.  (Bruch  v.  Colombet, 
104  Cal.  347,  38  Pac.  45.) 

Subdivision  28. — An  act  authorizing  the  police  commissioners  of 
Sacramento  to  appoint  policemen  not  exceeding  thirty  in  number  is 
a  special  law,  and  creates  officers  within  the  meaning  of  this  subdivi- 
sion.    (Farrell  v.  Board  of  Trustees,  85  Cal.  408,  24  Pac.  868.) 

The  word  "officers"  includes  policemen  in  cities,  and  includes  all 
officers  who  exercise  their  office  and  perform  their  duties  within  the 
limits  of  either  political  division  mentioned.  (Farrell  v.  Board  of 
Trustees,  85  Cal.  408,  24  Pac.  868.) 


Art.  IV,  §  25  CONSTITUTION  OF  1879.  264 

An  act  directing  the  municipality  to  pay  a  particular  claim  against 
it  is  in  violation  of  this  subdivision.  (Conlin  v.  Supervisors,  114  Cal. 
404,  33  L.  E.  A.  752,  46  Pac.  279.) 

An  act  creating  officers  in  but  one  class  of  counties,  arbitrarily 
created  and  designated  by  population,  without  reference  to  the  classi- 
fication contained  in  the  general  law,  is  in  violation  of  this  provision. 
(San  Francisco  v.  Broderick,  125  Cal.  188,  57  Pac.  8S7.) 

This  subdivision  does  not  prevent  the  passage  of  a  special  law  as  to 
a  board  of  harbor  commissioners  for  the  bay  of  San  Diego.  (People 
v.  MuUender,  132   Cal.  217,  64  Pac.  299.) 

The  act  of  March  18,  1911,  authorizing  the  respective  counties  and 
municipalities  of  the  state  to  appoint  sealers  of  weights  and  meas- 
ures, is  not  a  special  law  within  the  meaning  of  this  section.  (Scott 
V.  Boyle,  164  Cal.  321,  128  Pac.  941.) 

The  provision  of  the  charter  of  the  city  of  Berkeley  providing  for 
compensation  of  school  directors  is  not  a  special  law  under  this  subdi- 
vision. (Stern  v.  City  Council  of  Berkeley,  25  Cal.  App.  685,  145 
Pac.  167.) 

See,  also.  Ex  parte  Jordan,  62  Cal.  464;  Welsh  v.  Bramlet,  98  Cal. 
219,  33  Pac.  66;  Tulare  Co.  v.  May,  118  Cal.  303,  50  Pac.  427. 

Subdivision  29. — An  act  making  an  appropriation  to  pay  the  salary 
of  an  officer  during  a  certain  period  before  the  amount  of  the  salary 
has  been  fixed  is  not  in  violation  of  this  section.  (Smith  v.  Dunn,  64 
Cal.  164,  28  Pac.  232.     Smith  v.  Kenfield,  57  Cal.  138,  distinguished.) 

The  County  Government  Act  is  not  in  violation  of  this  provision. 
(Longan  v.  Solano  Co.,  65  Cal.  122,  3  Pac.  463.) 

An  act  fixing  the  salaries  of  county  officers  and  providing  that  in 
all  counties,  except  counties  of  three  designated  classes,  it  should  not 
take  effect  until  the  expiration  of  the  terms  of  the  incumbents,  and 
in  those  three  it  should  take  effect  the  first  day  of  the  month  succeed- 
ing its  passage,  is  a  special  law.  (Miller  v.  Kister,  68  Cal.  142,  8 
Pac.  813.) 

An  act  readjusting  the  salaries  of  all  county  officers  of  counties 
of  a  particular  class  is  a  general  law.  (Cody  v.  Murphey,  89  Cal.  522, 
26  Pac.  1081.) 

An  act  making  aii  appropriation  to  pay  James  W.  Rankin  for  ser- 
vices in  the  state  treasurer's  otnce  is  not  in  violation  of  this  section. 
(Rankin  v.  Colgan,  92  Cal.  605,  28  Pac.  673.) 

An  act  providing  that  when  the  population  of  an  existing  county 
shall  be  reduced,  by  reason  of  the  creation  of  any  new  county  from 
the  territory  thereof,  below  the  class  first  assumed  by  it  under  the 
act,  it  should  be  the  duty  of  the  supervisors  of  such  county  to  desig- 
nate the  class  to  which  such  county  has  been  reduced,  is  a  general 
law.     (Kumler  v.  Supervisors,  103  Cal.  393,  37  Pac.  383.) 

A  provision  of  the  fee  bill  allowing  justices  of  the  peace  a  certain 
portion  of  the  fees  collected  by  them,  without  reference  to  the  classi- 
fication contained  in  the  County  Government  Act,  is  a  special  law. 
(Dwyer  v.  Parker,  115  Cal.  544,  47  Pac.  372.) 

The  provision  of  the  County  Government  Act  of  1897,  providing 
for  salaries  in  certain  counties  in  lieu  of  fees  and  per  diem  is  valid. 
(Vail  V.  San  Diego,  126  Cal.  35,  58  Pac.  392.) 


II 


265  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  25 

The  act  of  March  18,  1911,  authorizing  the  respective  counties  and 
municipalities  of  the  state  to  appoint  sealers  of  weights  and  meas- 
ures, is  not  a  special  law  within  the  meaning  of  this  section.  (Scott 
V.  Boyle,   164  Cal.  321,  128  Pac.  941.) 

See,  also.  Ex  parte  Jordan,  62  Cal.  464;  Tulare  Co.  v.  May,  118  Cal. 
303,  50  Pac.  427. 

Subdivision  31. — Under  this  section  of  the  Constitution  of  1849 
the  legislature  had  the  power  to  create  municipal  corporations  at  will, 
by  special  laws,  and  a  given  territory  could  be  incorporated  by  it 
as  a  municipal  corporation  without  the  consent  or  the  acceptance  of 
the  inhabitants  thereof.  (People  v.  California  Fish  Co.,  166  Cal. 
576,  138  Pac.  79.) 

Subdivision  33. — In  Earle  v.  Board  of  Education,  55  Cal.  489,  it  was 
suggested,  but  not  decided,  that  the  court  may  determine  whether  a 
general  law  can  be  made  applicable  in  a  given  case. 

As  to  whether  the  legislative  determination  of  the  question  whether 
a  general  law  can  be  made  applicable  is  conclusive,  discussed  but  not 
decided.     (People  v.  Mullender,  132  Cal.  217,  64  Pac.  299.) 

A  law  cannot  be  held  invalid  merely  because,  in  the  opinion  of  the 
court,  it  would  have  been  possible  to  have  framed  a  general  law  un- 
der which  the  purpose  of  the  special  law  could  have  been  accom- 
plished.    (People  V.  Mullender,  132  Cal.  217,  64  Pac.  299.) 

It  is  impossible  for  the  court  to  say  that  a  general  law  could  be 
made  applicable  to  the  subject  of  formation  of  new  counties.  (People 
V.  McFadden,  81  Cal.  489,  15  Am.  St.  Eep.  66,  22  Pac.  851.) 

A  law  requiring  cities  of  two  designated  classes  to  make  effort  to 
agree  with  the  owners  of  land  sought  to  be  condemned,  before  in- 
stituting condemnation  proceedings,  is  special  legislation.  (Pasadena 
V.  Stimson,  91  Cal.  238,  27  Pac.  604.) 

A  provision  of  the  County  Government  Act  that  in  all  counties  of 
one  particular  class  certain  additional  fees  shall  be  collected  for  filing 
the  inventory  in  estates  of  deceased  persons,  is  violative  of  this  sec- 
tion.    (Bloss  V.  Lewis,  109  Cal.  493,  41  Pac.  1081.) 

The  act  of  1895,  providing  for  the  disincorporation  of  municipal 
corporations  of  the  sixth  class,  is  not  a  special  law.  (Mintzer  v. 
Schilling,  117  Cal.  361,  49  Pac.  209.) 

The  act  of  1893,  providing  a  special  method  of  collecting  fees  in 
cities  and  counties  of  over  one  hundred  thousand  inhabitants,  is  a 
special  law.     (Eauer  v.  Williams,  118  Cal.  401,  50  Pac.  691.) 

An  act  providing  a  special  mode  of  conducting  the  election  of  di- 
rectors of  mining  corporations  is  a  special  law.  (Krause  v.  Durbrow, 
127  Cal.  681,  60  Pac.  438.) 

An  act  providing  that  no  misnomer  of  the  owner  shall  affect  any 
assessment  by  an  irrigation  district  is  a  general  law.  (Escondido 
High  School  bist.  v.  Escondido  Seminary,  130  Cal.  128,  62  Pac.  401.) 

The  act  of  1905  creating  the  "Sacramento  Drainage  District,"  while 
a  special  act,  is  not  unconstitutional,  as  the  subject  matter  necessi- 
tated a  special  law.  Determination  of  the  legislature  as  to  necessity 
for  special  act  will  not  be  disturbed,  except  upon  a  clear  showing  that 
there  was  no  such  necessity.  (People  v.  Sacramento  Drainage  Dis- 
trict,  155   Cal.   373,   103   Puc.  2u7.) 


Art,  IV,  §  251/2        CONSTITUTION  OF  1879.  266 

A  law  proliibiting  waste  of  water  from  artesian  wells  is  not  uncon- 
Btitutional  because  not  made  applicable  to  surface  water  and  pumps. 
(Ex  parte  Elam,  6  Cal.  App.  233,  91  Pac.  811.) 

An  act  appropriating  money  for  the  support  of  veterans  of  the  Civil 
War  at  a  particular  home  is  not  unconstitutional  because  not  made 
applicable  to  all  veterans  of  the  Civil  War.  (Board  v.  Nye,  8  Cal. 
App.  527,  97  Pac.  208.) 

The  "Torrens  Land  Law"  is  not  a  special  law,  although  it  makes 
special  provisions  as  to  land  which  is  brought  under  the  act.  (Eob- 
inson  v.  Kerrigan,  151  Cal.  40,  121  Am.  St.  Eep.  90,  12  Ann.  Cas.  829, 
90  Pac.  129.) 

An  act  providing  different  qualifications  for  the  electors  who'  shall 
be  allowed  to  vote  at  an  election  to  be  held  in  pursuance  of  such  act 
is  not  a  special  law  forbidden  by  this  provision  of  the  Constitution. 
(Wheeler  v.  Herbert,  152  Cal.  224,  92  Pac.  353.) 

Section  172a  of  the  Penal  Code,  prohibiting  the  sale  of  liquor  near 
university  grounds  of  any  university  of  more  than  one  thousand  stu- 
dents, does  not  violate  this  section  of  the  Constitution,  merely  be- 
cause the  class  to  which  it  applies  consists  of  but  one  unit,  individual 
or  entity.     (Matter  of  Petition  of  Burke,  160  Cal.  300,  116  Pac.  755.) 

Under  this  section,  section  682  of  the  Penal  Code  cannot  be  con- 
strued as  authorizing  the  prosecution  and  trial  of  a  person  charged 
with  causing  and  contributing  to  the  dependency  of  a  female  under 
twenty-one,  on  a  verified  complaint  filed  in  the  superior  court.  (People 
V.  Budd,  24  Cal.  App.  176,  140  Pac.  714.) 

See,  also.  Marsh  v.  Hanly,  111  Cal.  368,  43  Pac.  975;  People  v.  Su- 
perior Court,  100  Cal.  105,  34  Pac.  492;  Conlin  v.  Supervisors,  114  Cal. 
404,  33  L.  R.  A.  752,  46  Pac.  279;  Tulare  Co.  v.  May,  118  Cal.  303,  50 
Pac.  427;  Ex  parte  Jentzsch,  112  Cal.  468,  32  L.  R.  A.  664,  44  Pac.  803. 

Subdivision  37. — Under  this  section  of  the  Constitution  of  1849, 
the  legislature  had  the  power  to  create  municipal  corporations  at  will, 
by  special  laws,  and  a  given  territory  could  be  incorporated  by  it 
as  a  municipal  corporation  without  the  consent  or  the  acceptance  of 
the  inhabitants  thereof.  (People  v.  California  Fish  Co.,  166  Cal.  576, 
138  Pac.  79.) 

Fish  and  g-ame  districts. 

Sec.  251/2-  The  legislature  may  provide  for  the  division 
of  the  state  into  fish  and  game  districts,  and  may  enact  such 
laM^s  for  the  protection  of  fish  and  game  therein  as  it  may 
deem  appropriate  to  the  respective  districts.  (Amendment 
adopted  November  4,  1902.) 

FISH  AND  GAME. — The  imposition  of  a  license  tax  of  ten  dollars 
a  year  for  the  privilege  of  fishing  for  profit  in  the  waters  of  the  state 
tends  to  protect  fish  and  this  section  expressly  authorizes  the  legis- 
lature to  enact  laws  for  that  purpose.  (Matter  of  Application  of 
Parra,  24  Cal.  App.  339,  141  Pac.  393.) 


267  LEGISLATI\"B   DEPARTMENT.  Art.  IV,  §  26 

Lotteries  prohibited — Purchase  and  sale  of  shares  of  stock 
to  be  regulated. 
Sec.  26.  The  legislature  shall  have  no  power  to  authorize 
lotteries  or  gift  enterprises  for  any  purpose  and  shall  pass 
laws  to  prohibit  the  sale  in  this  state  of  lottery  or  gift  en- 
terprise tickets  or  tickets  in  any  scheme  in  the  nature  of  a 
lottery.  The  legislature  shall  pass  laws  to  prohibit  the  ficti- 
tious buying  and  selling  of  the  shares  of  the  capital  stock  of 
corporations  in  any  stock  board,  stock  exchange  or  stock 
market  under  the  control  of  any  corporation  or  association. 
All  contracts  for  the  purchase  or  sale  of  shares  of  the  capi- 
tal stock  of  any  corporation  or  association  without  any  in- 
tention on  the  part  of  one  party  to  deliver  and  of  the  other 
party  to  receive  the  shares,  and  contemplating  merely  the 
payment  of  differences  between  the  contract  and  market 
prices  on  divers  days,  shall  be  void,  and  neither  party  to  any 
such  contract  shall  be  entitled  to  recover  any  damages  for 
failure  to  perform  the  same,  or  any  money  paid  thereon,  in 
any  court  of  this  state.  (Amendment  adopted  November 
3,  1908.) 

[ORIGINAL  SECTION.] 

Sec.  26.  The  legislature  shall  have  no  power  to  authorize  lot- 
teries or  gift  enterprises  for  any  purpose,  and  shall  pass  laws  to 
prohibit  the  sale  in  this  state  of  lottery  or  gift  enterprise  tickets, 
or  tickets  in  any  scheme  in  the  nature  of  a  lottery.  The  legisla- 
ture shall  pass  laws  to  regulate  or  prohibit  the  buying  and  selling 
of  the  shares  of  the  capital  stock  of  corporations  in  any  stock 
board,  stock  exchange,  or  stock  market  under  the  control  of  any 
association.  All  contracts  for  the  sale  of  shares  of  the  capital 
stock  of  any  corporation  or  association,  on  margin  or  to  be  deliv- 
ered at  a  future  day,  shall  be  void,  and  any  money  paid  on  such 
contracts  may  be  recovered  by  the  party  paying  it  by  suit  in  any 
court  of  competent  jurisdiction. 

LOTTERIES. — Under  this  section  an  ordinance  making  the  mere 
possession  of  a  lottery  ticket  a  misdemeanor  is  valid.  (Collins  v. 
Lean,  68  Cal.  284,  9  Pac.  173.) 

Trading  stamps  and  coupons  are  not  a  lottery.     (Ex  parte  Drexel, 
147  Cal.  763,  3  Ann.  Cas.  878,  2  L.  R.  A.  (N.  S.)  588,  82  Pac.  429.) 
What  are  lotteries.     See  notes,  16  Am.  St.  Rep.  42;  1  Ann.  Cas.  91. 
Chance  as   essential  element   of  lottery.     See  notes,   1   Ann.  Cas. 

168;  12  Ann.  Cas.  136. 
Guessing  contest   or  competition  as   lottery.     See   notes,   12  Ann, 
Cas.  321;  11  L.  R.  A.  (N.  S.)  609. 


Art.  IV,  §  26  CONSTITUTION  OF  1879.  268 

Distribution  of  parcels  of  land  by  chance  as  lottery.  See  notes, 
18  Ann.  Cas.  568;  23  L.  E.  A.  (N.  S.)  626;  27  L.  E.  A.  (N.  S.) 

287. 

Club  formed  by  tailor  for  distributing  clothes  as  lottery.  See 
notes,  5  Ann.  Cas.  837;  16  Ann.  Cas.  846;  21  L.  R.  A.  (N.  S.) 
876. 

SALE  OF  STOCK  ON  MARGIN.— This  provision  is  remedial,  not 
penal.  (Parker  v.  Otis,  130  Cal.  322,  92  Am.  St.  Eep.  56,  62  Pac.  571, 
927.) 

It  is  not  in  conflict  with  the  federal  Constitution.  (Parker  v.  Otis, 
130  Cal.  322,  92  Am.  St.  Eep.  56,  62  Pac.  571,  927;  affirmed  in  Otis 
V,  Parker,  187  U.  S.  606,  47  L.  Ed.  323,  23  Sup.  Ct.  Eep.  168.) 

Whether  or  not  a  particular  transaction  is  in  violation  of  this  pro- 
vision is  a  question  of  fact.  (Baldwin  v.  Zadig,  104  Cal.  594,  38  Pac. 
363,  722.) 

This  provision  will  not  be  extended  so  as  to  forbid  the  delivery  of 
stock  as  a  conditional  payment  for  the  purchase  of  land,  with  a  guar- 
anty of  cash  value,  and  an  agreement  to  take  it  back  at  the  end  of 
two  years,  upon  request,  and  to  make  the  payments  in  cash.  (Maurer 
v.  King,  127  Cal.  114,  59  Pac.  290.) 

An  undisclosed  principal  may  recover  money  paid  by  his  agent 
upon  a  contract  in  violation  of  this  section.  (Parker  v.  Otis,  130  Cal. 
322,  92  Am.  St.  Eep.  56,  62  Pac.  571,  927;  affirmed  in  Otis  v.  Parker, 
187  U.  S.  606,  47  L.  Ed.  323,  23  Sup.  Ct.  Rep.  168.) 

This  provision  is  not  to  be  confined  to  the  particular  person  hand- 
ing over  the  money.  (Parker  v.  Otis,  130  Cal.  322,  92  Am.  St.  Eep. 
56,  62  Pac.  571,  927;  affirmed  in  Otis  v.  Parker,  187  U.  S.  606,  47 
L.  Ed.  323,  23  Sup.  Ct.  Eep.  168.) 

This  provision  will  not  be  so  construed  as  to  permit  an  evasion 
of  it.  (Parker  v.  Otis,  130  Cal.  322,  92  Am.  St.  Eep.  56,  62  Pac.  571, 
927;  affirmed  in  Otis  v.  Parker,  187  U,  S.  606,  47  L.  Ed.  323,  23  Sup. 
Ct.  Rep.  168.) 

An  agreement  by  which  the  broker  is  to  purchase  stock,  charging 
the  customer  with  commissions  and  the  interest  on  the  money  ad- 
vanced, and  holding  the  stocks  as  security  until  their  sale,  the  cus- 
tomer simply  receiving  and  paying  the  difference  between  the  buying 
and  selling  values  of  the  stock,  is  in  violation  of  this  section.  (Cash- 
man  v.  Root,  89  Cal.  373,  23  Am.  St.  Rep.  482,  12  L.  R.  A.  511,  26  Pac. 
883.) 

The  payment  of  a  mere  margin  of  the  cost  price  of  stock  to  brok- 
ers, under  an  agreement  that  the  brokers  were  to  make  advances  for 
the  purchaser,  and  hold  the  stock  purchased  as  security  for  their 
advances,  with  power  to  sell  to  protect  their  interest,  without  deliv- 
ery to  the  purchaser  of  any  particular  shares  of  stock  purchased,  but 
with  readiness  of  the  brokers  at  any  time  on  demand  to  deliver  a 
like  number  of  shares  upon  payment  of  all  balance  due,  is  within  the 
prohibition  of  this  section.  (Parker  v.  Otis,  130  Cal.  322,  92  Am.  St, 
Eep.  56,  62  Pac.  571,  927;  affirmed  in  Otis  v.  Parker,  187  U,  S.  606, 
47  L.  Ed.  323,  23  Sup.  Ct.   Rep.   168.) 

A  contract  made  with  stock  brokers  for  the  purpose  of  speculating 
in  stocks,  to  purchase  a  number  of  shares  on  margin,  without  know- 


269  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  27 

ing  of  whom  or  where  they  were  to  be  bought,  to  be  delivered  at  a 
future  day,  if  at  all,  with  the  understanding  that  in  case  of  decline 
margin  was  to  be  kept  good,  and  brokers  to  retain  shares  as  security 
and  sell  w^hen  security  should  be  endangered,  violates  this  provision. 
(Stillwell  V.  Cutter,  146  Cal.  657,  80  Pac.  1071.) 

One  who  sues  to  recover  money  voluntarily  paid  for  the  purchase 
of  stocks  on  margins  or  to  be  delivered  at  a  future  day,  in  violation 
of  this  provision,  is  not  entitled  to  recover  interest  thereon.  (Bald- 
win V.  Zadig,  104  Cal.  594,  38  Pac.  363,  722.) 

Evidence  held  to  show  a  sale  upon  margins.  (PoUitz  v.  Wicker- 
sham,  150  Cal.  238,  88  Pac.  911.) 

The  amendment  of  November  3,  1908,  to  this  section  did  not  vali- 
date previous  contracts  made  in  contravention  of  the  repealed  provi- 
sion of  this  section,  which  invalidated  all  contracts  for  the  sale  of 
stocks  "on  margin  or  to  be  delivered  at  a  future  day,"  the  amend- 
ment not  being  retrospective  in  operation.  (Willcox  v.  Edwards,  162 
Cal.  455,  Ann.  Cas.  1913C,  1392,  123  Pac.  276.) 

Sale  of  futures.     See  note,  1  Am.  St.  Eep.  752. 
Illegality  as  gambling  contract,  of  contract  for  sale  of  property 
for  future  delivery  when  one  party  only  intends  delivery.     See 
note,  11  Ann.  Cas.  440. 

^^G^^^^mal  and  senatorial  districts. 

^is^^W^When  a  congressional  district  shall  be  composed 
of  tAvo  or  more  counties,  it  shall  not  be  separated  by  any 
county  belonging  to  another  district.  No  county,  or  city 
and  county,  shall  be  divided  in  forming  a  congressional  dis- 
trict so  as  to  attach  one  portion  of  a  county,  or  city  and 
county,  to  another  county,  or  city  and  county,  except  in 
cases  where  one  county,  or  city  and  county,  has  more  popu- 
lation than  the  ratio  required  for  one  or  more  congressmen ; 
but  the  legislature  may  divide  any  county,  or  city  and 
county,  into  as  many  congressional  districts  as  it  may  be 
entitled  to  by  law.  Any  county,  or  city  and  county,  con- 
taining a  population  greater  than  the  number  required  for 
one  congressional  district,  shall  be  formed  into  one  or  more 
congressional  districts,  according  to  the  population  thereof, 
and  any  residue,  after  forming  such  district  or  districts, 
shall  be  attached  by  compact  adjoining  assembly  districts, 
to  a  contiguous  county  or  counties,  and  form  a  con- 
gressional district.  In  dividing  a  county,  or  city  and 
county,  into  congressional  districts,  no  assembly  district 
shall  be  divided  so  as  to  form  a  part  of  more  than  one  con- 
gressional district,  and  every  such  congressional  district 
shall  be  composed  of  compact  contiguous  assembly  districts. 


Art.  IV,  §§  28-31     constitution  op  1879.  270 

CONGRESSIONAL  DISTRICTS.— As  to  the  apportionment  of  the 
state  in  general,  see  note  to  section  6  of  this  article. 

Elections  by  legislature  to  be  viva  voce. 

Sec.  28.  In  all  elections  by  the  legislature  the  members 
thereof  shall  vote  viva  voce,  and  the  votes  shall  be  entered 
on  the  journal. 

General  appropriation  bUl,  what  to  contain. 

Sec.  29.  The  general  appropriation  bill  shall  contain  no 
item  or  items  of  appropriation  other  than  such  as  are  re- 
quired to  pay  the  salaries  of  the  state  officers,  the  expenses 
of  the  government,  and  of  the  institutions  under  the  exclu- 
sive control  and  management  of  the  state. 


GENEBAIi  APPROPRIATION  BILL.— The  general  appropriation 
bill  cannot  create  an  office.  (Lewis  v.  Colgan,  115  Cal.  529,  47  Pac. 
357.) 

Appropriations  for  claims  for  illegal  taxes  collected  by  ^|^^ate 
treasurer  cannot  be  embraced  in  the  general  appropri^^^^fcill. 
(Westinghouse  Electric  Co.  v.  Chambers,  169  Cal.  131,  145  ^^^^.) 


Restriction  on  appropriations  and  grants  of  aid. 

Sec.  30.  Neither  the  legislature,  nor  any  county,  city  and 
county,  township,  school  district,  or  other  municipal  cor- 
poration, shall  ever  make  an  appropriation,  or  pay  from  any 
public  fund  whatever,  or  grant  anything  to  or  in  aid  of  any 
religious  sect,  church,  creed,  or  sectarian  purpose,  or  help 
to  support  or  sustain  any  school,  college,  university,  hos- 
pital, or  other  institution  controlled  by  any  religious  creed, 
church,  or  sectarian  denomination  whatever;  nor  shall  any 
grant  or  donation  of  personal  property  or  real  estate  ever 
be  made  by  the  state,  or  any  city,  city  and  county,  town,  or 
other  municipal  corporation  for  any  religious  creed,  church, 
or  sectarian  purpose  whatever;  provided,  that  nothing  in 
this  section  shall  prevent  the  legislature  granting  aid  pur- 
suant to  section  twenty-two  of  this  article. 

Credit  of  state  or  municipalities  not  to  be  loaned. 

Sec.  31.  The  legislature  shall  have  no  power  to  give  or 
to  lend,  or  to  authorize  the  giving  or  lending,  of  the  credit 
of  the  state,  or  of  any  county,  city  and  county,  city,  township, 
or  other  political  corporation  or  subdivision  of  the  state  now 


f 


271  LEGISLATIVE    DEPARTMENT.  Art.  IV,  §  31 

existing,  or  that  may  be  hereafter  established,  in  aid  of  or 
to  any  person,  association,  or  corporation,  whether  munici- 
pal or  otherwise,  or  to  pledge  the  credit  thereof,  in  any 
manner  whatever,  for  the  payment  of  the  liabilities  of  any 
individual,  association,  municipal  or  other  corporation  what- 
ever ;  nor  shall  it  have  power  to  make  any  gift,  or  authorize 
the  making  of  any  gift,  of  any  public  money  or  thing  of 
value  to  any  individual,  municipal  or  other  corporation 
whatever;  provided,  that  nothing  in  this  section  shall  pre- 
vent the  legislature  granting  aid  pursuant  to  section  twenty- 
two  of  this  article ;  and  it  shall  not  have  power  to  authorize 
the  state  or  any  political  subdivision  thereof,  to  subscribe 
for  stock,  or  to  become  a  stockholder  in  any  corporation 
shall  prevent  the  legislature  granting  aid  pursuant  to  sec- 
tion twenty-two  of  this  article ;  and  it  shall  not  have  power 
to  authorize  the  state,  or  any  political  subdivision  thereof, 
to  siibscribe  for  stock,  or  to  become  a  stockholder  in  any 
coTpfrtwtion  whatever ;  provided,  further,  that  irrigation 
districts  for  the  purpose  of  acquiring  the  control  of  any 
entire  international  water  system  necessary  for  its  use  and 
purposes,  a  part  of  which  is  situated  in  the  United  States, 
and  a  part  thereof  in  a  foreign  country,  may  in  the  manner 
authorized  by  law,  acquire  the  stock  of  any  foreign  cor- 
poration which  is  the  owner  of,  or  which  holds  the  title  to 
the  part  of  such  system  situated  in  a  foreign  country. 
(Amendment  adopted  November  3,  1914.) 

[ORIGINAL  SECTION.] 
Sec.  31.  The  legislature  shall  have  no  power  to  give  or  to  lend, 
or  to  authorize  the  giving  or  lending,  of  the  credit  of  the  state, 
or  of  any  county,  city  and  county,  city,  township,  or  other  politi- 
cal corporation  or  subctivision  of  the  state  now  existing,  or  that 
may  be  hereafter  established,  in  aid  of  or  to  any  person,  associa- 
tion, or  corporation,  whether  municipal  or  otherwise,  or  to  pledge 
the  credit  thereof,  in  any  manner  whatever,  for  the  payment  of 
the  liabilities  of  any  individual,  association,  municipal  or  other 
corporation  whatever;  nor  shall  it  have  power  to  make  any  gift,  or 
authorize  the  making  of  any  gift,  of  any  public  money  or  thing 
of  value  to  any  individual,  municipal  or  other  corporation  what- 
ever; provided,  that  nothing  in  this  section  shall  prevent  the  legis- 
lature granting  aid  pursuant  to  section  twenty-two  of  this  article; 
and  it  shall  not  have  power  to  authorize  the  state,  or  any  political 
subdivision  thereof,  to  subscribe  for  stock,  or  to  become  a  stock- 
bolder  in  any  corporation  whatever. 


Art.  IV,  §  31  CONSTITUTION  OF  1879.  272 

AID  TO  PRIVATE  ENTERPRISE.— An  appropriation  to  a  railroad 
company  to  aid  in  building  a  railroad,  in  consideration  of  valuable 
services,  is  not  a  gift  or  loan  of  the  credit  of  the  state.  (People  v. 
Pacheco,  27  Cal.  175.) 

Under  the  former  Constitution,  the  legislature  might  compel  a 
county  to  become  a  subscriber  to  a  railroad,  and  the  legislature  was 
the  sole  judge  of  the  question  as  to  whether  the  railroad  was  a  pub- 
lic benefit.  (Napa  Valley  R.  R.  Co.  v.  Board  of  Suprs.  of  Napa  Co., 
30  Cal.  435.) 

A  promise  by  a  municipality  in  a  contract  between  it  and  a  water 
company,  for  the  supply  of  water  in  bulk  to  the  municipality  and  its 
inhabitants  for  a  term  of  years  to  pay  for  not  less  than  a  certain 
amount  of  water  a  day,  does  not  amount  to  a  loan  of  the  credit  of  the 
municipality  contrary  to  this  section,  in  that  the  promise  is  based 
upon  the  covenants  of  the  water  company  to  construct  a  pipe-line 
extending  its  system  to  the  municipality.  (Marin  Water  etc.  Co.  v. 
Town  of  Sausalito,  168  Cal.  587,  143  Pae.   767.) 

GIFTS. — A  statute  will  not  be  held  unconstitutional  on  the  ground 
that  it  makes  a  gift,  unless  its  invalidity  appears  upon  its  face  or 
from  facts  of  which  the  court  takes  judicial  notice.  (Co-nlin  v.  Board 
of  Supervisors,  99  Cal.  17,  37  Am.  St.  Rep.  17,  21  L.  R.  A.  474,  33  Pac. 
753;  Stevenson  v.  Colgan,  91  Cal.  649,  25  Am.  St.  Rep.  230,  14  L.  R.  A. 
459,  27  Pac.  1089;  Rankin  v.  Colgan,  92  Cal.  605,  28  Pac.  673;  Bourn 
v.  Hart,  93  Cal.  321,  27  Am.  St.  Rep.  203,  15  L.  R.  A.  431,  28  I^c.  951.) 

The  courts  will  take  judicial  notice  that  in  no  case  would  a  city  be 
liable  for  any  portion  of  the  expense  of  street  improvements;  and, 
therefore,  an  act  appropriating  money  for  the  same  is  unconstitu- 
tional. (Conlin  v.  Board  of  Supervisors,  99  Cal.  17,  37  Am.  St.  Rep. 
17,  21  L.  R.  A.  474,  33  Pac.  753.) 

A  gift  as  used  in  this  section  includes  all  appropriations  for  which 
there  is  no  authority  or  enforceable  claim,  or  which  rest  alone  upon 
some  moral  or  equitable  obligation,  which  in  the  mind  of  a  generous 
or  even  just  individual,  dealing  with  his  own  money,  might  prompt 
him  to  recognize  as  worthy  of  reward.  (Conlin  v.  Board  of  Super- 
visors, 99  Cal.  17,  37  Am.  St.  Rep.  17,  21  L.  R.  A.  474,  33  Pac.  753.) 

A  gift  within  the  meaning  of  this  section  is  a  gratuitous  transfer 
of  the  property  of  the  state,  made  voluntarily  and  without  considera- 
tion.    (Yosemite  Stage  etc.  Co.  v.  Dunn,  83  Cal.  264,  23  Pac.  369.) 

Under  the  former  Constitution  the  legislature  might  authorize  the 
payment  of  claims  invalid  in  law,  but  equitable  and  just  in  them- 
selves. (Blanding  v.  Burr,  13  Cal.  343;  Creighton  v.  Board  of  Suprs. 
of  San  Francisco,  42  Cal.  446.) 

But  a  mere  moral  obligation  will  not  make  a  transaction  other  than 
a  gift.  (Molineux  v.  California,  109  Cal.  378,  50  Am.  St.  Rep.  49,  42 
Pac.  34.) 

The  legislature  has  no  power  to  make  gifts  to  its  employees  or  to 
allow  them  extra  compensation  after  service  rendered.  (Robinson  v. 
Dunn,  77  Cal.  473,  11  Am.  St.  Rep.  297,  19  Pac.  878.) 

The  legislature  has  no  power  to  create  a  liability  against  the  state 
tor  any  act  of  negligence  on  the  part  of  its  officers.  (Chapman  v. 
State,  104  Cal.  690,  43  Am.  St.  Rep.  158,  38  Pac.  457.) 


273  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  31 

The  legislature  has  power  to  waive  the  statute  of  limitations  in  re- 
spect to  a  claim  against  the  state.  (Bickerdike  v.  State,  144  Cal.  681, 
78  Pac.  270.) 

A  mere  change  in  the  remedy  does  not  create  a  liability  against  the 
state.  (Chapman  v.  State,  104  Cal.  690,  43  Am.  St.  Rep.  158,  38  Pac. 
457.) 

An  act  attempting  retroactively  to  exempt  resident  nephews  and 
nieces  from  the  payment  of  unpaid  taxes  upon  collateral  inheritances 
is  in  violation  of  this  provision.  (Estate  of  Stanford,  120  Cal.  112, 
45  L.  E.  A.  788,  54  Pac.  259,  58  Pac.  462.) 

A  purchase  of  an  unexpired  lease  of  the  Yosemite  and  Wawona 
wagon  road,  made  by  the  Yosemite  commissioners,  is  not  a  gift. 
(Yosemite  Stage  etc.  Co.  v.  Dunn,  83  Cal.  264,  23  Pac.  369.) 

A  law  attempting  to  confer  a  right  to  recover  interest  on  coupons 
upon  which  there  was  before  no  right  to  recover  interest  is  a  gift. 
(Molineux  v.  California,  109  Cal.  378,  50  Am.  St.  Eep.  49,  42  Pac.  34.) 

An  act  creating  an  exempt  firemen's  relief  fund,  and  requiring 
municipalities  to  aid  exempt  firemen  who  never  rendered  them  any 
service,  and  thus  creating  a  liability  where  none  existed  before,  is  in 
violation  of  this  section.     (Taylor  v.  Mott,  123  Cal.  497,  56  Pac.  256.) 

As  to  whether  a  contract  by  a  municipal  corporation  to  pay  money 
to  any  person  or  corporation  to  secure  the  construction  of  a  railroad 
would  be  in  violation  of  this  section,  see  Higgins  v.  San  Diego  Water 
Co.,  118  Cal.  524,  546,  45  Pac.  824,  50  Pac.  670. 

An  act  providing  a  bcmnty  on  coyote  scalps  does  not  constitute  a 
gift.  (Ingram  v.  Colgan,  106  Cal.  113,  46  Am.  St.  Rep.  221,  28  L.  R.  A. 
187,  38  Pac.  315,  39  Pac.  437.) 

The  mere  fact  that  the  city  enjoyed  the  actual  advantage  of  cer- 
tain street  improvements  does  not  create  any  moral  obligation,  and 
cannot  support  a  statute  appropriating  money  for  the  same.  (Conlin 
v.  Board  of  Supervisors,  99  Cal.  17,  37  Am.  "st.  Rep.  17,  21  L.  R.  A. 
474,  33  Pac.  753.) 

An  act  appropriating  five  thousand  dollars  for  the  benefit  of  the 
sufferers  from  the  Tia  Juana  floods  is  clearly  violative  of  this  provi- 
sion.    (Patty  V.  Colgan,  97  Cal.  251,  18  L.  R.  A.  744,  31  Pac.  1133.) 

An  appropriation  in  payment  of  a  claim  for  damages  on  account  of 
personal  injuries  sustained  while  in  the  service  of  the  state,  and  for 
which  the  state  is  not  responsible,  is  a  gift.  (Bourn  v.  Hart,  93  Cal. 
321,  27  Am.  St.  Rep.  203,  15  L.  R.  A.  431,  28  Pac.  951.) 

An  act  creating  a  police  life  and  health  insurance  fund,  and  pro- 
viding for  the  payment  into  such  fund  of  a  certain  portion  of  the  sala- 
ries of  police  officers,  does  not  make  a  gift  of  public  money.  (Pennie 
V.  Reis,  80  Cal.  266,  22  Pac.  176.) 

An  act  directing  the  payment  of  the  salary  of  an  oflieer  of  an  irri- 
gation district  out  of  the  funds  of  the  county  is  in  violation  of  this 
provision.     (Knox  v.  Board  of  Suprs.  of  Los  Angeles,  58  Cal.  59.) 

The  provision  of  the  Political  Code  for  the  repayment  to  purchasers 
of  swamp  lands  of  the  amounts  which  they  had  paid  for  their  lands, 
being  a  part  of  the  contract  between  them  and  the  state,  is  not  a  gift 
of  public  money.     (MeCord  v.  Slavin,  143  Cal.  325,  76  Pac.  1104.) 
Constitution — 18 


Art.  IV,  §  32  CONSTITUTION  of  1879.  274 

An  act  providing  for  the  payment  of  fees  to  jurors  for  past  services, 
where  there  was  no  previous  liability  therefor,  is  in  violation  of  this 
section.     (Powell  v.  Phelan,  138  Cal.  271,  71  Pac.  335.) 

After  the  right  of  the  state  to  an  inheritance  tax  has  become  vested 
by  death,  the  legislature  cannot,  by  repeal  of  the  act  creating  it,  aifect 
the  right  of  the  state  thereto.  (Estate  of  Lander,  6  Cal.  App.  744, 
93  Pac.  202.) 

The  amendment  of  1895  to  the  act  providing  for  the  formation  of 
agricultural  associations,  authorizing  the  transfer  of  all  the  property 
of  such  an  association  to  a  private  corporation  formed  within  the 
association,  to  be  used  and  disposed  of  for  the  benefit  of  such  corpo- 
ration and  its  stockholders  (subject  to  certain  limitations)  is  an  at- 
tempted gift  of  public  property.  (Sixth  District  Agr.  Assn.  v. 
Wright,  154  Cal.  119,  97  Pac.  144.) 

Under  this  section  the  legislature  is  without  power,  either  by  the 
repeal  of  the  law  in  virtue  of  which  the  right  to  a  tax  under  the  in- 
heritance tax  law  vested,  or  by  any  other  means,  to  grant  or  donate 
it  to  the  successor  in  estate,  or  to  any  other  person.  (Estate  of  Mar- 
tin, 153  Cal.  225,  94  Pac.  1953.) 

After  the  right  of  the  state  to  a  collateral  inheritance  tax  has  be- 
come vested  by  the  death  of  the  decedent,  the  legislature  cannot  sur- 
render the  same  by  any  repeal  or  change  in  the  law.  (Trippet  v. 
State,  149  Cal.  521,  8  L.  E.  A.  (N.  S.)   1210,  86  Pac.  1084.) 

An  appropriation  for  the  support  of  the  veterans  of  the  Civil  War 
at  the  Woman's  Eelief  Corps  Home  Association  is  not  a  gift.  (Board 
of  Directors  v.  Nye,  8  Cal.  App.  527,  97  Pac.  208.) 

The  appropriation  for  the  transportation  of  veterans  to  Gettysburg 
and  return  is  unconstitutional.  (McClure  v.  Nye,  22  Cal.  App.  248, 
133  Pac.  1145.) 

What  constitutes  valid  appropriation  of  public  moneys.     See  note, 

22  Am.  St.  Eep.  638. 
Appropriation  of  public  moneys  for  private  purposes.     See  note,  1 

Ann.  Cas.  935. 
Validity    of    statute    appropriating   public    funds    for   fairs.     See 

note,  9  Ann.  Cas.  52. 
Appropriation  in  aid  of  charity  as  within  constitutional  provision 
against  giving  or  loaning  money  or  credit  of  state  or  municipal- 
ity.    See  note,  Ann.  Cas.  1913C,  1234. 

Extra  compensation  to  officers  forbidden. 

Sec.  32.  The  legislature  shall  have  no  power  to  grant, 
or  authorize  any  county  or  municipal  authority  to  grant, 
any  extra  compensation  or  allowance  to  any  public  officer, 
agent,  servant,  or  contractor,  after  service  has  been  ren- 
dered, or  a  contract  has  been  entered  into  and  performed, 
in  whole  or  in  part,  nor  to  pay,  or  to  authorize  the  payment 
of,  any  claim  hereafter  created  against  the  state,  or  any 
county  or  municipality  of  the  state,  under  any  agreement  or 


275  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  32 

contract  made  without  express  authority  of  law ;  and  all 
such  unauthorized  agreements  or  contracts  shall  be  null  and 
void. 

EXTRA  COMPENSATION.— The  word  "law"  as  used  in  this  sec- 
tion is  used  in  the  same  sense  as  the  word  "statute,"  and  includes  an 
unconstitutional  statute.  (Miller  v.  Dunn,  72  Cal.  462,  1  Am.  St.  Eep. 
67,  14  Pae.  27.) 

This  section  does  not  prevent  the  legislature  from  making  an  appro'- 
priation  to  pay  a  claim  for  work  done  on  behalf  of  the  state,  in  pur- 
suance of  an  act  of  the  legislature,  which  is  judicially  declared 
unconstitutional  after  the  performance  of  the  work.  (Miller  v.  Dunn, 
72  Cal.  462,  1  Am.  St.  Eep.  67,  14  Pac.  27.) 

The  legislature  cannot  retroactively  give  an  officer  increased  com- 
pensation over  that  fixed  by  law  when  his  term  commenced,  by  rati- 
fying the  payment  of  such  increased  compensation.  (County  of  Butte 
V.  Merrill,  141  Cal.  396,  74  -'ac.  1036.) 

An  act  creating  an  exempt  firemen's  relief  fund,  and  requiring 
municipalities  to  aid  exempt  firemen  who  never  rendered  them  any 
service,  and  thus  creating  a  liability  where  none  existed  before,  is  in 
violation  of  this  section.     (Taylor  v.  Mott,  123  Cal.  497,  56  Pac.  256.) 

The  legislature  has  no  power  to  make  gifts  to  its  employees  or  to 
allow  them  extra  compensation  after  service  rendered.  (Eobinson  v. 
Dunn,  77  Cal.  473,  11  Am.  St.  Eep.  297,  19  Pac.  878.) 

A  contract  by  a  board  of  supervisors,  employing  the  district  attor- 
ney to  try  a  suit  in  another  county  after  the  expiration  of  his  term 
of  office,  does  not  increase  his  salary  as  district  attorney,  and  is  valid. 
(Jones  V.  Morgan,  67  Cal.  308,  7  Pac.  734.) 

An  act  making  an  appropriation  to  pay  the  salary  of  an  officer  dur- 
ing a  certain  period  before  tue  amount  of  the  salary  has  been  fixed  is 
not  in  violation  of  this  section.  (Smith  v.  Dunn,  64  Cal.  164,  28  Pac. 
2'32.) 

An  act  providing  for  a  police  life  and  health  insurance  fund  does 
not  grant  an  extra  compensation  in  violation  of  this  section.  (Pen- 
nie  V.  Eeis,  80  Cal.  266,  22  Pac.  176.) 

A  contract  by  the  clerk  of  the  board  of  supervisors  to  collect  a 
claim  against  the  state  and  divide  the  commission  with  the  district 
attorney  is  in  violation  of  this  section.  (Power  v.  May,  114  Cal.  207, 
46  Pac.  6.) 

Although  there  is  no  express  authority  of  law  for  the  board  of  ex- 
aminers to  appoint  an  expert,  they  have  the  power,  since,  in  addition 
to  its  express  powers,  a  board  has  such  additional  powers  as  are  neces- 
sary for  the  due  and  efficient  exercise  of  powers  expressly  granted,  or 
as  may  be  fairly  implied.  (Lewis  v.  Colgan,  115  Cal.  529,  47  Pac. 
357.) 

An  act  appropriating  money  for  the  salary  of  an  expert  to  the  board 
of  examiners  is  valid,  and  the  employment  of  such  expert  by  the 
board  is  not  void  as  being  without  express  authority  of  law.  (Lewis 
V.  Colgan,   115   Cal.  529,  47  Pac.  357.) 

Validity  of  statute  providing  for  payment  by  state,  county,  etc., 
of  premium  on  bond  of  public  officer.  See  note,  Ann.  Cas. 
1913D,  715. 


Art.  IV,  §§  33,  34    constitution  of  1879.  276 

^» 

Constitutional  provision  against  increasing  compensation  during 
term  of  office  as  applicable  where  new  duties  are  imposed  on 
officer  after  taking  office.     See  note,  18  Ann.  Cas.  403. 

Applicability  to  nonconstitutional  officer  of  constitutional  provi- 
sion against  increase  of  salary  of  officer  during  his  term  of 
office.     See  note,  26  L.  R.  A.  (N.  S.)   289. 

Charg-es  of  g-as  and  telegraph  corporations  to  be  regulated. 
Sec.  33.  The  legislature  shall  pass  laws  for  the  regula- 
tion and  limitation  of  the  charges  for  services  performed 
and  commodities  furnished  by  telegraph  and  gas  corpora- 
tions, and  the  charges  by  corporations  or  individuals  for 
storage  and  wharfage,  in  which  there  is  a  public  use ;  and 
where  laws  shall  provide  for  the  selection  of  any  person  or 
officer  to  regulate  and  limit  such  rates,  no  such  person  or 
officer  shall  be  selected  by  any  corporation  or  individual  in- 
terested in  the  business  to  be  regulated,  and  no  person  shall 
be  selected  who  is  an  officer  or  stockholder  in  any  such  cor- 
poration. 

WATER  RATES. — As  to  water  and  gas  rates,  see  note  to  section  1, 
article  XIV,  and  section  19,  article  XI. 

This  section  does  not  make  it  necessary  for  the  legislature  to  pass 
laws  regulating  the  manner  in  which  the  authority  conferred  by  sec- 
tion 19,  article  XI,  shall  be  exercised,  before  that  section  becomes 
operative.     (Denninger  v.  Recorder's  Court,  145  Cal.  629,  79  Pac.  360.) 

This  section  authorizes  municipalities  to  regulate  the  charges  for 
services  of  telephone,  telegraph,  gas  and  certain  other  corporations. 
(Home  Telephone  &  Tel.  Co.  v.  City  of  Los  Angeles,  155  Fed.  554.) 

Special  appropriation  bill,  restriction  as  to. 

Sec.  34.  No  bill  making  an  appropriation  of  money,  ex- 
cept the  general  appropriation  bill,  shall  contain  more  than 
one  item  of  appropriation,  and  that  for  one  single  and  cer- 
tain purpose  to  be  therein  expressed. 

APPROPRIATIONS. — The  fact  that  an  act  making  two  or  more 
distinct  appropriations  has  but  one  general  purpose  will  not  render  it 
consistent  with  this  provision  of  the  Constitution.  (Murray  v.  Col- 
gan,  94  Cal.  435,  29  Pac.  871.) 

An  act  making  an  appropriation  for  a  county  for  ramie  fiber,  and 
also  an  appropriation  for  the  salary  of  a  state  superintendent  of 
ramie  culture,  is  in  violation  of  this  section.  (Murray  v.  Colgau,  94 
Cal.  435,  29  Pac.  871.) 

An  act  appropriating  money  for  the  purchase  of  a  site  for  a  home 
for  feeble-minded  children,  and  for  the  erection  of  buildings  thereon, 


277  LEGISLATIVE   DEPARTMENT.  Art.  IV,  §  35 

is  not  in  violation  of  this  section.  (People  v.  Dunn,  80  Cal.  211,  13 
Am.  St.  Rep.  118,  22  Pac.  140.) 

An  act  making  an  appropriation  to  pay  the  separate  claims  of  five 
different  persons  for  services  rendered  a  receiver  appointed  at  the 
suit  of  the  state  violates  this  section.  (Sullivan  v.  Gage,  145  Cal. 
7.59,  79  Pac.  537.) 

See,  also,  People  v.  Counts,  89  Cal.  15,  19,  26  Pac.  612;  State  v. 
Sloan,  66  Ark.  575,  74  Am.  St.  Rep.  106,  53  S.  W.  47. 

Section  3669  of  the  Political  Code,  directing  the  state  controller, 
in  the  event  of  a  final  judgment  being  recovered  against  the  state 
treasurer  for  the  amount  of  taxes  illegally  assessed  by  the  state 
board  of  equalization  and  collected  by  the  treasurer,  to  draw  his 
warrant  therefor  upon  the  treasurer  and  directing  the  latter  to  pay 
-it,  is  unconstitutional,  since  it  is  not  a  specific  appropriation  of  the 
kind  described  in  this  section.  (Westinghouse  Electric  Co.  v.  Cham- 
bers, 169  Cal.  131,  145  Pac.  1025.) 

Lobbying'  defined — Punishment  for. 

Sec.  35.  Any  person  who  seeks  to  influence  the  vote  of  a 
member  of  the  legislature  by  bribery,  promise  of  reward, 
intimidation,  or  any  other  dishonest  means,  shall  be  guilty 
of  lobbying,  which  is  hereby  declared  a  felony;  and  it  shall 
be  the  duty  of  the  legislature  to  provide,  by  law,  for  the 
punishment  of  this  crime.  Any  member  of  the  legislature, 
who  shall  be  influenced  in  his  vote  or  action  upon  any  mat- 
ter pending  before  the  legislature  by  any  reward,  or  prom- 
ise of  future  reward,  shall  be  deemed  guilty  of  a  felony,  and 
upon  conviction  thereof,  in  addition  to  such  punishment  as 
may  be  provided  by  law,  shall  be  disfranchised  and  forever 
disqualified  from  holding  any  office  of  public  trust.  Any 
person  may  be  compelled  to  testify  in  any  lawful  investiga- 
tion or  judicial  proceeding  against  any  person  who  may  be 
charged  with  having  committed  the  offense  of  bribery  or 
corrupt  solicitation,  or  with  having  been  influenced  in  his 
vote  or  action,  as  a  member  of  the  legislature,  by  reward, 
or  promise  of  future  reward,  and  shall  not  be  permitted  to 
Avithhold  his  testimony  upon  the  ground  that  it  may  crimi- 
nate himself  or  subject  him  to  public  infamy ;  but  such  tes- 
timony shall  not  afterward  be  used  against  him  in  any  judi- 
cial proceeding,  except  for  perjury  in  giving  such  testi- 
mony. 

LOBBYING. — The  term  "lobbying"  signifies  to  address  or  solicit 
members  of  a  legislative  body   with  the   purpose  of  influencing  their 


Art.  IV,  §  36  CONSTITUTION  OF  1879.  278 

votes.     (Colusa  Co.  v.  Welch,  122  Cal.  428,  55  Pac.  243;  Le  Tourneux 
V.  Gilliss,  1  Cal.  App.  546,  82  Pac.  627.) 

Services  rendered  by  an  attorney  in  endeavoring  to  persuade  the 
members  of  the  legislature  individually  to  act  favorably  upon  a  bill, 
in  which  no  dishonest,  secret,  or  unfair  means  were  used,  do  not  con- 
stitute "lobbying"  within  the  meaning  of  this  section.  (Foltz  v. 
Cogswell,  86  Cal.  542,  25  Pac.  60.  Approved  in  Colusa  Co.  v.  Welch, 
122  Cal.  428,  55  Pac.  243.) 

A  contract  to  pay  to  secure,  by  means  of  personal  solicitation,  and 
by  means  of  private  interviews  with  members  of  the  legislature,  and 
by  means  of  lobbying,  the  defeat  of  a  bill  pending  in  the  legislature, 
is  prohibited  by  this  section.  (Colusa  Co.  v.  Welch,  122  Cal.  428,  55 
Pac.  243.) 

A  contract,  the  object  of  which  is  to  aid  one  of  the  parties  to  engage 
in  the  business  of  lobbying,  will  not  be  enforced.  (Le  Tourneux  v. 
Gilliss,  1  Cal.  App.  546,  82  Pac.  627.) 

In  order  to  show  that  certain  acts  constitute  "lobbying,"  it  is  not 
necessjiry  to  show  that  any  corrupt  means  were  used  to  influence 
votes.     (Le  Tourneux  v.  Gilliss,  1  Cal.  App.  546,  82  Pac.  627.) 

This  section  does  not  take  away  the  power  of  the  legislature  to 
define  legislative  bribery  and  to  fix  the  punishment  therefor.  (In  re 
Bunkers,  1  Cal.  App.  61,  81  Pac.  748.) 

Nor  does  it  limit  the  power  of  the  legislature  itself  to  expel  a  mem- 
ber for  bribery  under  section  9  of  this  article.  (French  v.  Senate, 
146  Cal.  604,  2-  Ann.  Cas.  756,  69  L.  R.  A.  556,  80  Pac.  1031.) 

Validity  of  lobbying  contracts.     See  note,  121  Am.  St.  Rep.  726. 
Validity    of   contract   for   contingent   compensation   in   procuring 

legislation.     See  note,  6  Ann.  Cas.  218. 
Contracts    for    services    to    procure    legislation.     See    notes,    30 
L.  R.  A.  737;  4  L.  R.  A.  (N.  S.)  213. 

State  hig-hways. 

Sec.  36.  The  legislature  shall  have  power  to  establish  a 
system  of  state  highways  or  to  declare  any  road  a  state 
highway,  and  to  pass  all  laws  necessary  or  proper  to  con- 
struct and  maintain  the  same,  and  to  extend  aid  for  the 
construction  and  maintenance  in  whole  or  in  part  of  any 
county  highway.     (Amendment  adopted  November  4,  1902.) 


279  EXECUTIVE  DEPARTMENT,  Art.  V,  §§  1,  2 

ARTICLE  V. 

EXECUTIVE  DEPAETMENT. 

§     1.  Executive  power  vested  in  governor. 

§     2.  Election  of  governor  and  term  of  office. 

§     3.  Eligibility  and  qualifications. 

§     4.  Eeturns  of  election — Counting  votes. 

§     5.  Governor  to  be  commander-in-chief  of  militia, 

§     6.  Executive  business  of. 

§     7.  To  see  that  laws  are  executed. 

§     8.  To  fill  vacancies  in  office. 

§     9.  When  to  convene  special  sessions. 

§   10.  Messages  to  legislature. 

§  11.  When  to  adjourn  legislature. 

§  12.  Disability  to  hold  other  offices. 

§  13.  Keeper  of  seal  of  state. 

§  14.  To  sign  and  seal  grants  and  commissions. 

§   15.  Lieutenant-governor — Election  of,  etc. 

§  16.  When  powers  of  governor  devolve  on. 

§   17.  State  officers — Election  and  terms  of  office. 

§  18,  Secretary  of  state — Duties  of. 

§  19.  Compensation  of  state  officers. 

§  20.  United  States  senators,  how  elected. 

Executive  power  vested  in  gfovemor. 

Section  1.  The  supreme  executive  power  of  this  state 
shall  be  vested  in  a  chief  magistrate  who  shall  be  styled  the 
Governor  of  the  state  of  California. 

THE  GOVERNOR.— When  a  ministerial  duty,  affecting  a  private 
right,  is  specially  devolved  on  the  governor  by  law,  he  may  be  com- 
pelled to  perform  the  same  by  writ  of  mandate.  (Middleton  v.  Low^ 
30  Cal.  596;  Harpending  v.  Haight,  39  Cal.  189,  2  Am.  Eep.  432.) 

Whether  mandamus  may  be  issued  against  governor.     See  notes, 
33  Am.  Dec.  361;  31  Am.  St.  Eep.  294. 

Election  of  governor  and  term  of  office. 

Sec.  2.  The  governor  shall  be  elected  by  the  qualified 
electors  at  the  time  and  places  of  voting  for  members  of  the 
assembly,  and  shall  hold  his  office  four  years  from  and  after 
the  first  Monday  after  the  first  day  of  January  subsequent 
to  his  election,  and  until  his  successor  is  elected  and  quali- 
fied. 

TERM. — The  term  is  fixed  at  four  years  certain,  with  a  contingent 
extension.  When  this  contingency  happens,  this  extension  is  as  much 
a  part  of  the  entire  term  as  any  portion  of  the  four  years.  (People 
V.  Whitman,  10  Cal.  38.) 


Art.  V,  §§3-8  CONSTITUTION  OF  1879.  280 

Eligibility  and  qualifications. 

Sec.  3.  No  person  shall  be  eligible  to  the  office  of  gov- 
ernor who  has  not  been  a  citizen  of  the  United  States  and 
a  resident  of  this  state  five  years  next  preceding  his  election, 
and  attained  the  age  of  twenty-five  years  at  the  time  of  such 
election. 

Returns  of  election — Counting-  votes. 

Sec.  4.  The  returns  of  every  election  for  governor  shall 
be  sealed  up  and  transmitted  to  the  seat  of  government, 
directed  to  the  speaker  of  the  assembly,  who  shall,  during 
the  first  week  of  the  session,  open  and  publish  them  in  the 
presence  of  both  houses  of  the  legislature.  The  person  hav- 
ing the  highest  number  of  votes  shall  be  governor;  but,  in 
case  any  two  or  more  have  an  equal  and  the  highest  num- 
ber of  votes,  the  legislature  shall,  by  joint  vote  of  both 
houses,  choose  one  of  such  persons  so  having  an  equal  and 
the  highest  number  of  votes  for  governor. 

Governor  to  be  commander-in-chief  of  militia. 

Sec.  5.  The  governor  shall  be  commander-in-chief  of  the 
militia,  the  army  and  navy  of  this  state. 

Executive  business  of. 

Sec.  6.  He  shall  transact  all  executive  business  with  the 
officers  of  government,  civil  and  military,  and  may  require 
information,  in  writing,  from  the  officers  of  the  executive 
department,  upon  any  subject  relating  to  the  duties  of  their 
respective  offices. 

To  see  that  laws  are  executed. 

Sec.  7.     He  shall  see  that  the  laws  are  faithfully  executed. 

EXECUTE  LAWS. — In  the  absence  of  a  provision  in  the  "San 
Francisco  Sea-Wall  Act,"  for  the  publication  required  by  article  XVI, 
the  duty  to  provide  for  the  publication  devolved  upon  the  governor. 
(Spear  v.  Beeves,  148  Cal.  501,  83  Pac.  432.) 

To  fill  vacancies  in  oflBce. 

Sec.  8.  When  any  office  shall,  from  any  cause,  become 
vacant,  and  no  mode  is  provided  by  the  Constitution  and 


I 


281  EXECUTIVE   DEPARTMENT.  Art.  V,  §  8 

law  for  filling  such  vacancy,  the  governor  shall  have  power 
to  fill  such  vacancy  by  granting  a  commission,  which  shall 
expire  at  the  end  of  the  next  session  of  the  legislature,  or 
at  the  next  election  by  the  people. 

APPOINTIHENT  OF  OFFICERS.— After  the  issuance  of  the  com- 
mission, the  governor  cannot  revoke  the  appointment.  (People  v. 
Cazneau,  20  €al.  503.) 

The  words  "Constitution  and  law"  mean  Constitution  or  law.  (Peo- 
ple V.  Nye,  9  Cal.  App.  148,  98  Pac.  241.) 

Where  an  officer  is  to  be  appointed  by  the  governor  by  and  with 
the  consent  of  the  senate,  and  the  governor  makes  an  appointment 
during  the  recess  of  the  legislature,  he  cannot,  before  such  appointee 
is  rejected  by  the  senate,  appoint  another  person  to  the  office.  (Peo- 
ple V.  Mizner,  7  Cal.  519.) 

An  appointment  by  the  governor  only  lasts  till  the  next  election  by 
the  people.     (People  v.  Melony,  15  Cal.  58.) 

The  words  "next  election  by  the  people"  do  not  mean  the  next  gen- 
eral election,  or  the  next  election  held  bj^  the  people,  but  that  the  ap- 
pointee shall  hold  until  someone  has  been  regularly  elected  to  fill 
that  office  in  the  manner  provided  by  law;  and  as  applied  to  the 
lieutenant-governor  it  means  the  next  gubernatorial  election.  (Peo- 
ple v.  Budd,  114  Cal.  168,  34  L.  E.  A.  46,  45  Pac.  1060.) 

The  words  "next  election  by  the  people"  mean  the  next  election 
after  the  vacancy  happens,  and  in  cases  of  judges,  does  not  mean  the 
next  general  judicial  election.     (People  v.  Mott,  3  Cal.  502.) 

This  provision  is  to  be  read  distributively,  so  that,  if  the  office  is 
elective,  the  appointee  shall  hold  till  the  next  election,  and  if  not 
elective,  till  the  end  of  the  next  session  of  the  legislature,  which  shall 
either  elect  a  successor  or  enact  laws  for  his  election.  (People  v. 
Mott,  3  Cal.  502.) 

OflB.cers. — The  term  "officer,"  as  used  in  this  section,  is  sufficiently 
comprehensive  to  include  all  persons  in  any  public  station  or  employ- 
ment conferred  by  the  government,  and  includes  the  clerks  of  the 
secretary  of  state.     (Vaughn  v.  English,  8  Cal.  39.) 

Vacancies. — This  provision  applies  only  to  vacancies  occurring 
under  circumstances  such  that  the  original  appointing  or  electing 
power  cannot  act.  Such  power  is  limited  by  the  period  when  the 
people  or  the  legislature  can  elect  or  appoint,  on  the  arrival  of  which 
period  his  power  ceases  and  the  right  of  appointment  returns  to  the 
original  appointing  power.     (People  v.  Fitch,  1  Cal.  519.) 

Before  this  section  can  apply  two  things  must  be  shown:  1.  That  a 
vacancy  exists;  and  2.  That  no  mode  of  filling  it  is  provided  by  law. 
(People  V.  Mizner,  7  Cal.  519.) 

This  section  has  no  application  to  the  filling  of  a  vacancy,  the  mode 
of  filling  which  is  provided  by  law.  (People  v.  Cazneau,  20  Cal.  503; 
People  V.  Stratton,  28  Cal.  382.) 

As  to  whether  or  not  this  section  has  any  application  to  local  offi- 
cers, see  People  v.  Hammond,  66  Cal.  654,  6  Pac.  741. 

The  power  to  fill  an  office  carries  with  it,  by  implication,  the  power 
to  fill  a  vacancy,  and  all  necessary  authority  to  carry  out  the  original 


Art.  V,  §  8  CONSTITUTION  OF  1879.  282 

power,  and  prevent  it  from  becoming  inoperative.     (People  v.  Fitch, 
1  Cal.  519.) 

If  an  act  creating  an  office  provides  that  the  incumbent  of  another 
office  shall,  ex  officio,  fill  the  office  created,  and  the  incumbent  is  pro- 
hibited by  the  Constitution  from  holding  the  office,  there  is  no 
vacancy.     (People  v.  Sanderson,  30  Cal.  160.) 

When  a  district  judge  resigns  during  his  term,  there  is  a  vacancy  to 
be  filled  by  the  governor,  and  the  appointee  will  hold  until  the  next 
general  election,  or  at  most  until  the  qualification  of  the  person 
elected  by  the  people.     (People  v.  Eosborough,  14  Cal.  180.) 

Where  an  officer  continues  to  discharge  the  duties  of  the  office  after 
the  expiration  of  his  term,  and  before  the  qualification  of  his  suc- 
cessor, there  is  no  vacancy  in  the  office  within  the  meaning  of  this 
section.     (People  v.  Edwards,  93  Cal.  153,  28  Pac.  831.) 

Absence  of  a  judge  from  the  state  does  not  create  a  vacancy  within 
the  meaning  of  this  section.  (People  v.  Wells,  2  Cal.  198,  610, 
Anderson,  J.,  dissenting.) 

The  legislature  has  no  power  to  determine  when  a  vacancy  exists 
within  the  meaning  of  this  section.  (People  v.  Wells,  2  Cal.  198,  610; 
People  V.  Mizner,  7  Cal.  519.) 

When  the  Constitution  clearly  enumerates  the  events  that  shall  con- 
stitute a  vacancy  in  a  particular  office,  all  others  must  be  excluded. 
(People  v.  Whitman,  10  Cal.  38.) 

Failure  of  an  elected  officer  to  qualify  does  not  create  a  vacancy  in 
the  office.     (People  v.  Whitman,  10  Cal.  38.) 

No  vacancy  occurs  by  the  death,  removal,  or  resignation  of  a  sher- 
ifi",  as  the  coroner,  by  operation  of  law,  becomes  sheriff  upon  the  hap- 
pening of  such  an  event.     (People  v.  Phoenix,  6  Cal.  92.) 

As  to  whether  a  failure  to  elect  a  successor  leaves  an  office  vacant 
at  the  expiration  of  the  term,  see  People  v.  Parker,  37  Cal.  639. 

Particular  cases. — If  the  office  of  lieutenant-governor  becomes  va- 
cant during  his  term  of  office,  the  governor  may  fill  the  vacancy  for 
the  full  remainder  of  the  unexpired  term.  (People  v.  Budd,  114  Cal, 
168,  34  L.  E.  A.  46,  45  Pac.  1060.) 

Where  a  fire  commissioner  was  appointed  under  the  act  of  1878  by 
the  judge  of  the  county  court  for  the  term  of  four  years  and  until 
his  successor  is  appointed  and  qualified,  and  the  new  Constitution 
superseded  the  appointing  functions  of  such  judge  and  did  not  vest 
tnem  in  any  other  person,  such  commissioner  holds  over,  and  there 
is  no  vacancy  in  the  office.  (People  v.  Edwards,  93  Cal.  153,  28  Pac. 
831.) 

Where  the  position  of  state  printer  becomes  vacant  during  the  ses- 
sion of  the  legislature,  which  was  the  appointing  power,  the  governor 
has  no  power  to  appoint  a  successor.     (People  v.  Fitch,  1  Cal.  519.) 

Where  the  district  judge  was  to  be  appointed  by  the  legislature  for 
the  first  term  and  thereafter  elected  by  the  people,  and  the  legislature 
failed  to  appoint,  and  the  governor  appoints  to  fill  the  vacancy,  the 
person  so  appointed  only  holds  till  the  next  election,  and  not  till  the 
next  session  of  the  legislature.     (People  v.  Mott,  3  Cal.  502.) 

Where  an  officer  is  appointed  by  the  legislature  to  hold  for  two 
years,  and  until  his  successor  is  appointed  and  qualified,  and  the  sue- 


283  EXECUTIVE  DEPARTMENT.  Art.  V,  §§  9,  10 

ceeding  legislature  fails  to  elect,  the  governor  may  appoint.     (People 
V.  Reid,  6  Cal.  288.) 

Where  the  legislature  fails  to  elect  a  successor  to  an  officer  at  the 
expiration  of  the  term,  the  governor  may  appoint.  (People  v.  Baine, 
6  Cal.  509;  People  v.  Langdon,  8  Cal.  1.) 

Where  the  appointment  of  an  officer  is  vested  in  the  governor,  with 
the  advice  and  consent  of  the  senate,  and  the  term  expires  during  the 
recess  of  thC'  senate,  the  governor  may  fill  such  vacancy  for  the  full 
term,  subject  only  to  be  defeated  by  nonconcurrence  by  the  senate. 
(People  V.  Addison,  10  Cal.  1.) 

When  the  legislature  provides  that  in  case  of  a  vacancy  in  a  par- 
ticular office  a  board  shall  fill  it  until  the  next  session  of  the  legis- 
lature, the  filling  of  the  vacancy  is  provided  for  within  the  meaning 
of  this  section,  and  no  vacancy  is  caused  by  the  failure  of  the  legis- 
lature to  elect.     (People  v.  Parker,  37  Cal.  639.) 

Power  of  appointing  power  to  make  appointment  to  office  when 
term  thereof  does  not  begin  until  after  expiration  of  term  of 
appointing  power.  See  note,  18  Ann.  Cas.  142. 
Power  of  governor  to  appoint  to  office  in  absence  of  constitu- 
tional or  statutory  authority.  See  note,  19  Ann.  Cas.  823. 
Term  of  office  of  person  elected  or  appointed  to  fill  vacancy  in 
absence  of  constitutional  or  statutory  provision.  See  notes, 
Ann.  Cas.  1913D,  619;  12  Ann.  Cas.  572. 

When  to  convene  special  sessions. 

Sec.  9.  He  may,  on  extraordinary  occasions,  convene  the 
legislature  by  proclamation,  stating  the  purposes  for  which 
he  has  convened  it,  and  when  so  convened  it  shall  have  no 
power  to  legislate  on  any  subjects  other  than  those  specified 
in  the  proclamation,  but  may  provide  for  the  expenses  of 
the  session  and  other  matters  incidental  thereto. 

EXTRA  SESSIONS. — The  confirmation  of  appointments  by  the  gov- 
ernor is  not  legislation  within  the  meaning  of  this  section,  (People 
V.  Blanding,  63  Cal.  333.) 

But  the  proposing  of  constitutional  amendments  is  such  legislation. 
(People  V.  Curry,  130  Cal.  82,  62  Pac.  516.) 

The  governor  is  the  sole  judge  of  the  existence  of  an  extraordinary 
occasion  for  convening  the  legislature.  (Whiteman  v.  Wilmington 
etc.  R.  R.  Co.,  2  Harr.  (Del.)  514,  33  Am.  Dec.  411.) 

Messages  to  legislature. 

Sec.  10.  He  shall  communicate  by  message  to  the  legisla- 
ture, at  every  session,  the  condition  of  the  state,  and  rec- 
ommend such  matters  as  he  shall  deem  expedient. 


Art.  V,  §§  11-15      CONSTITUTION  OP  1879.  284 

When  to  adjourn  legislature. 

Sec.  11.  In  case  of  a  disagreement  between  the  two 
houses  with  respect  to  the  time  of  adjournment,  the  gov- 
ernor shall  have  power  to  adjourn  the  legislature  to  such 
time  as  he  may  think  proper ;  provided,  it  be  not  beyond  the 
time  fixed  for  the  meeting  of  the  next  legislature. 

Disability  to  hold  other  offices. 

Sec.  12.  No  person  shall,  while  holding  any  office  under 
the  United  States  or  this  state,  exercise  the  office  of  gov- 
ernor except  as  hereinafter  expressly  provided. 

Keeper  af  seal  of  state. 

Sec.  13.  There  shall  be  a  seal  of  this  state,  which  shall 
be  kept  by  the  governor,  and  used  by  him  officially,  and 
shall  be  called  "The  Great  Seal  of  the  State  of  California." 

To  sign  and  seal  grants  and  commissions. 

See.  14.  All  grants  and  commissions  shall  be  in  the  name 
and  by  the  authority  of  the  people  of  the  state  of  California, 
sealed  with  the  great  seal  of  the  state,  signed  by  the  governor, 
and  countersigned  by  the  secretary  of  state. 

TAX  DEED. — The  fact  that  a  tax  deed  is  not  executed  in  the  man- 
ner provided  by  this  section  does  not  affect  its  validity.  (Schamblin 
V.  Means,  6  Cal.  App.  261,  91  Pac.  1020.) 

Lands  acquired  by  the  state  for  nonpayment  of  taxes  are  not  within 
the  purview  of  this  section,  and  the  state  may  make  the  tax  collector 
or  any  other  person  its  agent  and  attorney  in  fact  for  the  passing  of 
the  legal  title  to  such  lands.  (Bank  of  Lemoore  v.  Tulgham,  151  Cal 
234,  90  Pac.  936.) 

Lieutenant-governor — Election  of,  etc. 

Sec.  15.  A  lieutenant-governor  shall  be  elected  at  the 
same  time  and  place,  and  in  the  same  manner,  as  the  gov- 
ernor, and  his  term  of  office  and  his  qualifications  shall  be 
the  same.  He  shall  be  president  of  the  senate,  but  shall 
only  have  a  casting  vote  therein.  (Amendment  adopted 
November  8,  1898.) 

[OEIGINAL  SECTION.] 
Sec.  15.     A  lieutenant-governor  shall  be  elected  at  the  same  time 
and  place,  and  in  the  same  manner,  as  the  governor;  and  his  term 


285  EXECUTIVE  DEPARTMENT.  Art.  V,  §  16 

of  office  and  his  qualifications  of  eligibility  shall  also  be  the  same. 
He  shall  be  president  of  the  senate,  but  shall  have  only  a  casting 
vote  therein.  If,  during  a  vacancy  of  the  office  of  governor,  the 
lieutenant-governor  shall  be  impeached,  displaced,  resign,  die,  or 
become  incapable  of  performing  the  duties  of  his  office,  or  be  ab- 
sent from  the  state,  the  president  pro  tempore  of  the  senate  shall 
act  as  governor  until  the  vacancy  be  tilled  or  the  disability  shall 
cease.  The  lieutenant-governor  shall  be  disqualified  from  holding 
any  other  office,  except  as  specially  provided  in  this  Constitution, 
during  the  term  for  which  he  shall  have  been  elected. 

When  powers  of  governor  devolve  on. 

Sec.  16.  Ill  case  of  the  impeachment  of  the  governor,  or 
his  removal  from  office,  death,  inability  to  discharge  the 
powers  and  duties  of  his  office,  resignation,  or  absence  from 
the  state,  the  powers  and  duties  of  the  office  shall  devolve 
upon  the  lieutenant-governor  for  the  residue  of  the  term,  or 
until  the  disability  shall  cease.  And  should  the  lieutenant- 
governor  be  impeached,  displaced,  resign,  die,  or  become 
incapable  of  performing  the  duties  of  his  office,  or  be  absent 
from  the  state,  the  president  pro  tempore  of  the  senate  shall 
act  as  governor  until  the  vacancy  in  the  office  of  governor 
shall  be  filled  at  the  next  general  election,  when  members 
of  the  legislature  shall  be  chosen,  or  until  such  disability  of 
the  lieutenant-governor  shall  cease.  In  case  of  a  vacancy 
in  the  office  of  governor  for  any  of  the  reasons  above  named, 
and  neither  the  lieutenant-governor  nor  the  president  pro 
tempore  of  the  senate  succeed  to  the  powers  and  duties  of 
governor,  then  the  powers  and  duties  of  such  office  shall 
devolve  upon  the  speaker  of  the  assembly,  until  the  office 
of  governor  shall  be  filled  at  such  general  election. 
(Amendment  adopted  November  8,  1898.) 

[OEIGINAL  SECTION.] 

Sec.  16.  In  case  of  the  impeachment  of  the  governor,  or  his 
removal  from  office,  death,  inability  to  discharge  the  powers  and 
duties  of  the  said  office,  resignation,  or  absence  from  the  state, 
the  powers  and  duties  of  the  office  shall  devolve  upon  the  lieuten- 
ant-governor for  the  residue  of  the  term,  or  until  the  disability 
shall  cease.  But  when  the  governor  shall,  with  the  consent  of  the 
legislature,  be  out  of  the  state  in  time  of  war,  at  the  head  of  any 
military  force  thereof,  he  shall  continue  commander-in-chief  of  all 
the  military  force  of  the  state. 


Art.  V,  §§  17-19       CONSTITUTION  OF  1879. 


286 


State  officers — Election  and  terms  of  office. 

Sec.  17.  A  secretary  of  state,  a  controller,  a  treasurer, 
an  attorney  general,  and  a  surveyor-general  shall  be  elected 
at  the  same  time  and  places,  and  in  the  same  manner  as  the 
governor  and  lieutenant-governor,  and  their  terms  of  office 
shall  be  the  same  as  that  of  the  governor. 

EXECUTIVE  OFFICERS. — Neither  an  appointment  hj  the  gov- 
ernor, nor  an  election  by  the  people,  had  before  the  election  of 
governor,  can  deprive  the  people  of  their  right  to  fill  the  office  of 
controller  at  such  election.     (People  v.  Melony,  15  Cal.  58.) 

The  controller  is  a  ministerial  officer  and  has  no  discretion  as  to 
the  issuance  of  warrants  for  appropriations.  (People  v.  Brooks,  16 
Cal.  11.) 

Although  the  Constitution  is  wholly  silent  as  to  the  duties  of  the 
attorney  general,  secretary  of  state,  controller,  and  treasurer,  and 
contains  no  express  limitation  on  the  power  of  the  legislature  as  to 
the  same,  yet  a  limitation  on  their  power  is  necessarily  implied  from 
the  nature  of  these  offices.     (Love  v.  Baehr,  47  Cal.  364.) 

The  legislature  may  devolve  on  the  secretary  of  state  the  perform- 
ance of  services  foreign  to  tTie  office,  and  may  pay  him  a  salary  there- 
for in  addition  to  his  salary  as  secretary  of  state.  (Melons  v.  State, 
51  Cal.  549;  Green  v.  State,  51  Cal.  577.) 

In  assigning  duties  to  these  officers,  the  legislature  possesses  a  wide 
discretion,  and  while  the  legislature  cannot  compel  the  attorney  gen- 
eral to  perform  the  duties  of  a  member  of  the  board  of  examiners, 
it  may  compensate  him  for  doing  so  voluntarily.  (Love  v.  Baehr,  47 
Cal.  364.) 

The  term  of  the  controller  begins  on  the  first  Monday  after  the 
first  day  of  January.     (People  v.  Nye,  9  Cal.  App.  148,  98  Pac.  241.) 

Where  an  incumbent  of  the  office  of  controller  dies  after  his  elec- 
tion to  a  second  term  and  before  his  qualification,  an  appointee  for 
the  balance  of  the  unexpired  term  would  hold  only  to  the  beginning 
of  the  second  term.     (People  v.  Nye,  9  Cal.  App.  148,  98  Pac.  241.) 

Secretary  of  state — Duties  of. 

Sec.  18.  The  secretary  of  state  shall  keep  a  correct  rec- 
ord of  the  official  acts  of  the  legislative  and  executive  de- 
partments of  the  government,  and  shall,  when  required,  lay 
the  same,  and  all  matters  relative  thereto,  before  either 
branch  of  the  legislature,  and  shall  perform  such  other 
duties  as  may  be  assigned  him  by  law. 


Compensation  of  state  officers. 

Sec.  19.     The  governor,  lieutenant-governor,  secretary  of 
state,  controller,   treasurer,   attorney   general,  and  surveyor- 


287  EXECUTIVE  DEPARTMENT.  Art.  V,  §  19 

general  shall,  at  stated  times  during  their  continuance  in 
office,  receive  for  their  services  a  compensation  which  shall 
not  be  increased  or  diminished  during  the  term  for  which 
they  shall  have  been  elected,  which  compensation  is  hereby 
fixed  for  the  following  officers,  as  follows :  Governor,  ten 
thousand  dollars  per  annum ;  lieutenant-governor,  four  thou- 
sand dollars,  the  secretary  of  state,  controller,  treasurer, 
and  surveyor-general,  five  thousand  dollars  each  per  annum, 
and  the  attorney  general,  six  thousand  dollars  per  annum, 
such  compensation  to  be  in  full  for  all  services  by  them 
respectively  rendered  in  any  official  capacity  or  employ- 
ment whatsoever  during  their  respective  terms  of  office ;  pro- 
vided, however,  that  the  legislature  may,  by  law,  diminish 
the  compensation  of  any  or  all  of  such  officers,  but  in  no 
case  shall  have  the  power  to  increase  the  same  above  the 
sums  hereby  fixed  by  this  Constitution.  No  salary  shall  be 
authorized  by  law  for  clerical  service,  in  any  office  provided 
for  in  this  article,  exceeding  eighteen  hundred  dollars  per 
annum  for  each  clerk  employed.  The  legislature  may,  in 
its  discretion,  abolish  the  office  of  surveyor-general;  and 
none  of  the  officers  hereinbefore  named  shall  receive  for 
their  own  use  any  fees  or  perquisites  for  the  performance 
of  any  official  duty.  (Amendment  adopted  November  3, 
1908.) 

[OEIGINAL  SECTION.] 
Sec.  19.  The  governor,  lieutenant-governor,  secretary  of  state, 
controller,  treasurer,  attorney  general,  and  surveyor  general  shall, 
at  stated  times  during  their  continuance  in  office,  receive  for  their 
services  a  compensation  which  shall  not  be  increased  or  diminished 
during  the  term  for  which  they  shall  have  been  elected,  which 
compensation  is  hereby  fixed  for  the  following  officers  for  the  two 
terms  next  ensuing  the  adoption  of  this  Constitution,  as  follows: 
Governor,  six  thousand  dollars  per  annum;  lieutenant-governor,  the 
same  per  diem  as  may  be  provided  by  law  for  the  speaker  of  the 
assembly,  to  be  allowed  only  during  the  session  of  the  legislature; 
the  secretary  of  state,  controller,  treasurer,  attorney  general,  and 
surveyor  general,  three  thousand  dollars  each  per  annum,  such  com- 
pensation to  be  in  full  for  all  services  by  them  respectively  ren- 
dered in  any  official  capacity  or  employment  whatsoever  during 
their  respective  terms  of  O'ffice;  provided,  however,  that  the  legis- 
lature, after  the  expiration  of  the  terms  hereinbefore  mentioned, 
may,  by  law,  diminish  the  compensation  of  any  or  all  of  such  offi- 
cers, but  in  no   case   shall   have   the  power  to   increase   the   same 


Art.  V,  §  20 


CONSTITUTION  OF   1879. 


288 


above  the  sums  hereby  fixed  by  this  Constitution.  No  salary  shall 
be  authorized  by  law  for  clerical  service,  in  any  office  provided 
for  in  this  article,  exceeding  sixteen  hundred  dollars  per  annum 
for  each  clerk  employed.  The  legislature  may,  in  its  discretion, 
abolish  the  office  of  surveyor  general;  and  none  of  the  officers 
hereinbefore  named  shall  receive  for  their  own  use  any  fees  or 
perquisites  for  the  performance  of  any  official  duty. 

SALARIES  OF  STATE  OFFICERS.— The  original  provision  of  this 
section  could  not  affect  the  power  of  the  people  to  amend  the  same 
and  increase  the  salaries  of  incumbents.  (Eangsbury  v.  Nye,  9  Cal. 
App.    574,    99    Pac.    985.) 

The  amendment  to  this  section  in  1908  applied  to,  and  increased 
the  salaries  of,  the  incumbents.  (Kingsbury  v,  Nye^  9  Cal.  A^ap.  574, 
99  Pac.  985.) 

United  States  senators,  how  elected. 

Sec.  20.  United  States  senators  shall  be  elected  by  the 
people  of  the  state  in  the  manner  provided  by  law. 
(Amendment  adopted  November  3,  1914.) 

[ORIGINAL  SECTION.]     . 
Sec.  20.     The  governor  shall  not,   during  his  term   of  office,  be 
elected  a  senator  to  the  senate  of  the  United  States. 

UNITED  STATES  SENATE. — The  provision  of  the  original  section 
was  invalid  and  not  binding  upon  the  United  States  senate.  The 
qualification  of  members  of  that  body  being  fixed  by  the  United 
States  Constitution,  additional  ones  cannot  be  required  by  the  states. 
(Barney  v.  McCreery,  1  Cong.  El.  Cas.  167;  Turney  v.  Marshall,  2 
Cong.  El.  Cas.  167;  Trumbull's  Case,  2  Cong,  El.  Cas.  618.) 


289  JUDICIAL   DEPx\.RTMENT.  Art.  VI,  §  1 

ARTICLE  VI. 

JUDICIAL   DEPAKTMENT. 

Judicial  powers. 

fc^upreme  court,  how  constituted. 

Election  of  supreme  justices. 

Jurisdiction  of  supreme  court  and  courts  of  appeal. 

Harmless  errors  to  be  disregarded. 

Superior  court,  jurisdiction. 

Superior  court,  bow  constituted. 

Superior  judges,  apportionment  of  business. 

Judge  may  hold  court  in  other  county — Judge  pro  tempore. 

Leave  of  absence — Limitation  of  time. 

Justices  and  judges,  how  removed. 

Justices  of  the  peace,  provision  for. 

Courts  of  record. 

Jurisdiction  of  inferior  courts  to  be  fixed  by  legislature. 

Clerks  of  courts  and  court  commissioners. 

Judicial  officers  not  to  receive  fees  and  perquisites. 

Supreme  court   opinions  to  be   published. 

Compensation  of  justices  and  judges. 

Justices  and  judges  ineligible  to  other  offices. 

Charges  to  juries. 

Style  of  process. 

Clerk  and  reporter. 

Judges  not  to  practice  law. 

Eligibility  of  justices  and  judges. 

Condition   precedent   to   draft   of  salary. 

Supreme  court  commission. 

Judicial  powers. 

Section  1.  The  judicial  power  of  the  state  shall  be  vested 
in  the  senate,  sitting  as  a  court  of  impeachment,  in  a  su- 
preme court,  district  courts  of  appeal,  superior  courts  and 
such  inferior  courts  as  the  legislature  may  establish  in  any 
incorporated  city  or  town,  township,  county,  or  city  and 
county.     (Amendment  approved  October  10,  1911.) 

[AMENDMENT  OF  1904.] 

Section  1.  The  judicial  power  of  the  state  shall  be  vested  in 
the  senate,  sitting  as  a  court  of  impeachment,  in  a  supreme  court, 
district  courts  of  appeal,  superior  courts,  justices  of  the  peace,  and 
such  inferior  courts  as  the  legislature  may  establish  in  any  incor- 
porated city  or  town,  or  city  and  county.  (Amendment  adopted 
November  8,  1904.) 

[ORIGINAL   SECTION.] 
Section  1.     The  judicial   power  of  the   state   shall  be  vested   in 
the  senate  sitting  as  a  court  of  impeachment,  in  a  supreme  court, 
Constitution — 19 


§ 

1. 

§ 

2. 

§ 

3. 

§ 

4. 

§ 

4i 

§ 

5. 

§ 

6. 

§ 

7. 

§ 

8. 

§ 

9. 

§ 

10. 

§ 

11. 

§ 

12. 

§ 

13. 

§ 

14. 

§ 

15. 

§ 

16. 

§ 

17. 

§ 

18, 

§ 

19. 

§ 

20. 

§ 

21. 

§ 

22. 

§ 

23. 

§ 

24. 

§ 

25. 

Art.  VI,  §  1  CONSTITUTION  OF  1879.  290 

superior  courts,  justices  of  the  peace,  and  such  inferior  courts  as 
the  legislature  may  establish  in  any  incorporated  city  or  town,  or 
city  and  county. 

JUDICIAL  DEPARTMENT — Preconstitutlonal  courts. — The  cor- 
rectness of  the  proceedings  of  the  courts  exercising  civil  jurisdiction 
in  California  between  the  time  of  its  acquisition  by  the  United  States 
and  the  establishment  of  a  state  government  are  not  to  be  tested  by 
the  strict  rules  of  the  civil  or  common  law.  (Eyder  v.  Cohn,  37  Cal. 
69.) 

Judicial  power. — It  is  the  inherent  authority  not  only  to  decide  but 
to  make  binding  orders  or  judgments  which  constitutes  judicial  power. 
(People  V.  Hayne,  83  Cal.  Ill,  17  Am.  St.  Eep.  217,  7  L.  R.  A.  348, 
23  Pac.  1.) 

The  legislature  cannot  enjoin  upon  a  private  person  the  duty  of  set- 
tling a  bill  of  exceptions,  nor  require  a  judge  to  continue  to  discharge 
judicial  duties  after  his  term  of  office  has  expired,  though  it  may 
authorize  him  to  settle  such  bill.  (Leach  v.  Aitken,  91  Cal.  484,  28 
Pac.  777.) 

The  matter  of  the  adoption  of  children  is  not  part  of  the  judicial 
power  within  the  meaning  of  this  section,  and  may,  therefore,  be 
conferred  upon  a  judge  as  distinguished  from  the  court.  (In  re 
Stevens,  83  Cal.  322,  17  Am.  St.  Eep.  252,  23  Pac.  379.) 

A  tribunal  presided  over  by  a  police  judge  is  a  court.  (Boys'  and 
Girls'  Aid  Soc.  v.  Eeis,  71  Cal.  627,  12  Pac.  796.) 

The  proceeding  to  establish  title  to  land  in  San  Francisco  when  the 
records  were  destroyed  by  fire  is  judicial  in  its  nature.  (Title  etc. 
Restoration  Co.  v.  Kerrigan,  150  Cal.  289,  119  Am.  St.  Eep.  199,  8 
L.  E.  A.  (N.  S.)  682,  88  Pac.  356.) 

The  legislature  cannot  confer  jurisdiction  of  special  cases  upon  a 
judge  as  distinguished  from  a  court.  (Spencer  Creek  etc.  Co.  v.  Va- 
ilejo,  48  Cal.  70.) 

An  act  creating  supreme  court  commissioners  to  assist  the  court — 
which  commissioners  simply  examine  the  record  and  report  to  the 
court  their  conclusions — is  not  unconstitutional  as  vesting  judicial 
power  in  the  commissioners.  (People  v.  Hayne,  83  Cal.  Ill,  17  Am. 
St.  Rep.  217,  7  L.  R.  A.  348,  23  Pac.  1.) 

The  legislature  may  provide  that  the  city  council  shall  be  the  final 
and  exclusive  judge  of  the  election  of  all  municipal  ofiicers.  (Carter 
v.  Superior  Court,  138  Cal.  150,  70  Pac.  1067.) 

The  legislature  cannot  invest  ministerial  officers  with  the  power  to 
punish  individuals  by  fine  and  imprisonment.  (Burns  v.  Superior 
Court,  140  Cal.  1,  73  Pac.  597.) 

The  legislature  may  invest  judicial  officers  with  power  to  punish 
for  contempt.     (Crocker  v.  Conrey,  140  Cal.  213,  73  Pac.  1006.) 

Inferior  courts. — A  freeholders'  charter  is  not  a  law  within  the 
meaning  of  this  section,  and,  therefore,  an  inferior  court  cannot  be 
established  by  such  charter.  (People  v.  Toal,  85  Cal.  333,  24  Pac. 
603;  Miner  v.  Justice's  Court,  121  Cal.  264,  53  Pac.  795;  Ex  parte 
Sparks,  120  Cal.  395,  52  Pac.  715.) 

This  section  limits  the  power  of  the  legislature  to  the  establishment 
of  municipal  and  inferior  courts  within  the  limits  of  an  incorporated 
city  or  town.     (Ex  parte  Stratman,  39  Cal.  517.) 


291  JUDICIAL   DEPARTMENT.  Art.  VI,  §  1 

The  municipal  criminal  court  of  San  Francisco  is  an  inferior  court 
within  the  meaning  of  this  section.  (Ex  parte  Stratman,  39  Cal.  517; 
People  V.  Nyland,  41  Cal.  129.) 

The  police  court  of  San  Francisco  was  not  abolished  by  the  consti- 
tutional amendments  in  1862.     (People  v.  Provines,  34  Cal.  520.) 

The  term  "municipal  courts"  has  a  legal  meaning  and  includes 
mayors'  and  recorders'  courts.     (Uridias  v.  Morrill,  22  Cal.  473.) 

The  legislature  may  vest  in  inferior  courts  jurisdiction  of  cases  of 
which  the  courts  established  by  the  Constitution  have  jurisdiction. 
(Hickman  v.  O'Neal,  10  Cal.  292;  Seale  v.  Mitchell,  5  Cal.  401;  Vas- 
sault  V.  Austin,  36  Cal.  691;   Curtis  v.  Eichards,  9  Cal.  33.) 

Under  this  section,  the  legislature  has  power  to  create  police  or 
other  inferior  courts  in  any  incorporated  city  or  town  which  has  not 
taken  advantage  of  the  permission  granted  by  section  8^  of  article 
XI  to  include  in  its  charter  provision  for  the  establishment  of  a  police 
court.     (Fleming  v.  Hauce,  153  Cal.  162,  94  Pac.  620.) 

The  board  of  drainage  commissioners  created  by  the  "Sacramento 
Drainage  District"  act,  in  equalizing  assessments  and  correcting 
errors  therein,  is  not  exerciging  judicial  functions  in  violation  of  the 
Constitution.  (People  v.  Sacramento  Drainage  Dist.,  155  Cal.  373, 
103  Pac.  207.) 

The  legislature  may  authorize  a  municipal  court  to  send  its  process 
beyond  the  territorial  limits  of  the  municipality,  (Hickman  v. 
O'Neal,  10  Cal.  292.     Meyer  v.  Kalkmann,  6  Cal,  582,  overruled.) 

Judges  of  the  police  court  of  San  Francisco  are  not  affected  by  the 
provisions  of  the  County  Government  Act,  but  derive  their  power 
from  this  section,  and  the  act  of  1893.  (Kahn  v.  Sutro,  114  Cal.  316, 
33  L.  R.  A.  620,  46  Pac.  87;  In  re  Mitchell,  120  Cal.  384,  52  Pac.  799. 
But  see  People  v.  Cobb,  133  Cal.  74,  65  Pac.  325.) 

An  act  creating  police  courts  in  cities  having  fifteen  thousand,  and 
under  eighteen  thousand,  inhabitants,  not  being  in  conformity  with 
the  general  classification  of  municipal  corporations,  is  void.  (Ex 
parte  Giambonini,  117  Cal.  573,  49  Pac.  732.) 

An  act  creating  a  justice's  court  for  one  particular  named  town, 
and  fixing  its  jurisdiction,  is  not  authorized  by  this  section.  (Miner 
V.  Justice's  Court,  121  Cal.  264,  53  Pac.  795.) 

An  act  providing  for  a  police  judge  necessarily  presupposes  a  police 
court.     (Ex  parte  Mauch,  134  Cal.  500,  66  Pac.  734.) 

The  late  superior  court  of  San  Francisco  was  an  inferior  court, 
but  its  process  ran  outside  of  the  city.  (Chipman  v.  Bowman,  14 
Cal.  157;  McCauley  v.  Fulton,  44  Cal.  355.) 

The  legislature  is  vested  with  power  to  confer  jurisdiction  over  all 
misdemeanors  on  inferior  courts,  unless  jurisdiction  over  any  of  them 
is  conferred  upon  some  other  court  by  the  Constitution  itself.  (Mat- 
ter of  Application  of  Westenberg,  167  Cal.  309,  139  Pac.  674.) 

The  amendment  of  October  10,  1911,  of  this  section  does  not  abolish 
the  justices'  courts  and  other  inferior  courts  which  had  been  previ- 
ously established  by  acts  of  the  legislature.  They  remain  in  existence 
with  the  jurisdiction  vested  in  them  by  the  acts  creating  them,  until 
the  legislature  shall',  in  the  exercise  of  the  power  given  by  the  section 
as  amended,  otherwise  provide.  (Matter  of  the  Application  of  Woods, 
161  Cal.  238,  118  Pac.  792.) 


1 


Art.  VI,  §  2  CONSTITUTION  OF  1879.  292 

What  is  judicial  power  within  constitutional  theory  as  to  separa- 
tion of  powers  of  government.  See  note,  Ann.  Gas.  1913E, 
1097. 

Power  of  legislature  to  create  or  abolish  court  of  record.  See 
note,  Ann.  Cas.  1913C,  1160. 

"Validity  of  statute  concerning  juvenile  court.     See  notes,  120  Am. 

St.  Eep.  952;  Ann.  Cas.  1914 A,  1227. 
Creation  of  courts  by  the  Constitution.     See  7  E.  C.  L.,  §  6,  p.  977. 

Supreme  court,  how  constituted. 

Sec.  2.  The  supreme  court  shall  consist  of  a  chief  jus- 
tice and  six  associate  justices.  The  court  may  sit  in  de- 
partments and  in  bank,  and  shall  always  be  open  for  the 
transaction  of  business.  There  shall  be  two  departments, 
denominated,  respectively,  department  one  and  department 
two.  The  chief  justice  shall  assign  three  of  the  associate 
justices  to  each  department,  and  such  assignment  may  be 
changed  by  him  from  time  to  time.  The  associate  justices 
shall  be  competent  to  sit  in  either  department,  and  may  in- 
terchange with  each  other  by  agreement  among  themselves 
or  as  ordered  by  the  chief  justice.  Each  of  the  depart- 
ments shall  have  the  power  to  hear  and  determine  causes 
and  all  questions  arising  therein,  subject  to  the  provisions 
hereinafter  contained  in  relation  to  the  court  in  bank.  The 
presence  of  three  justices  shall  be  necessary  to  transact  any 
business  in  either  of  the  departments,  except  such  as  may 
be  done  at  chambers,  and  the  concurrence  of  three  justices 
shall  be  necessary  to  pronounce  a  judgment.  The  chief 
justice  shall  apportion  the  business  to  the  departments,  and 
may,  in  his  discretion,  order  any  cause  pending  before  the 
court  to  be  heard  and  decided  by  the  court  in  bank.  The 
order  may  be  made  before  or  after  judgment  pronounced  by 
a  department ;  but  where  a  cause  has  been  allotted  to  one  of 
the  departments,  and  a  judgment  pronounced  thereon,  the 
order  must  be  made  within  thirty  days  after  such  judgment, 
and  concurred  in  by  two  associate  justices,  and  if  so  made  it 
shall  have  the  effect  to  vacate  and  set  aside  the  judgment. 
Any  four  justices  may,  either  before  or  after  judgment  by 
a  department,  order  a  case  to  be  heard  in  bank.  If  the  order 
be  not  made  within  the  time  above  limited  the  judgment  shall 
be  final.     No  judgment  by  a  department  shall  become  final 


293  JUDICIAL    DEPARTMENT.  Art.  VI,  §  2 

until  the  expiration  of  the  period  of  thirty  days  aforesaid, 
unless  approved  by  the  chief  justice,  in  writing,  with  the  con- 
currence of  two  associate  justices.  The  chief  justice  may  con- 
vene the  court  in  bank  at  any  time,  and  shall  be  the  presiding 
justice  of  the  court  when  so  convened.  The  concurrence  of 
four  justices  present  at  the  argument  shall  be  necessary  to 
pronounce  a  judgment  in  bank ;  but  if  four  justices,  so  pres- 
ent, do  not  concur  in  a  judgment,  then  all  the  justices  quali- 
fied to  sit  in  the  cause  shall  hear  the  argument ;  but  to  render 
a  judgment  a  concurrence  of  four  judges  shall  be  necessary. 
In  the  determination  of  causes,  all  decisions  of  the  court  in 
bank  or  in  departments  shall  be  given  in  writing,  and  the 
grounds  of  the  decision  shall  be  stated.  The  chief  justice  may 
sit  in  either  department,  and  shall  preside  when  so  sitting, 
but  the  justices  assigned  to  each  department  shall  select  one 
of  their  number  as  presiding  justice.  In  case  of  the  absence 
of  the  chief  justice  from  the  place  at  which  the  court  is  held, 
or  his  inability  to  act,  the  associate  justices  shall  select  one 
of  their  own  number  to  perform  the  duties  and  exercise  the 
powers  of  the  chief  justice  during  such  absence  or  inability 
to  act. 

SUPREME  COURT. — This  section  by  implication  forbids  the  legis- 
lature to  increase  the  number  of  justices  of  the  supreme  court.  (Peo- 
ple V.  Wells,  2  Cal.  198,  610.) 

In  the  absence  of  any  provision  on  the  subject,  all  the  judges  com- 
IMJsing  the  court  must  sit.  (People  v.  Ah  Chung,  5  Cal.  103;  People 
V.  Barbour,  9  Cal.  230.) 

The  word  "heard"  means  the  consideration  and  determination  of  a 
cause  by  the  court.     (Niles  v.  Edwards,  95  Cal.  41,  30  Pac.  134.) 

When  a  cause  is  submitted  on  briefs,  all  the  justices  are  deemed 
to  be  present,  and  all  of  them  are  qualified  to  join  in  the  decision. 
(Philbrook  v.  Newman,  148  Cal.  172,  82.  Pac.  772.) 

It  is  not  necessary  that  four  justices  be  physically  present  at  an 
oral  argument,  nor  that  all  of  the  justices  qualified  to  "sit"  shall  lit- 
erally "hear"  an  argument;  but  whenever  there  is  an  oral  argument, 
only  the  justices  who  were  present  at  such  argument  are  authorized 
to  take  part  in  the  decision  of  the  court.  (Niles  v.  Edwards,  95  Cal. 
41,  30  Pac.  134.) 

It  is  not  necessary  that  four  justices  should  concur  in  the  judgment 
upon  the  same  grounds.  (Philbrook  v.  Newman,  148  Cal.  172,  82 
Pac.  772.) 

The  fact  that  one  of  the  judges  who  participated  in  a  decision  of 
the  court  did  not  hear  the  oral  argument  docs  not  render  the  judg- 
ment absolutely  void.  It  is  an  irregularity  which  may  be  waived  by 
the  parties.     (Blanc  v.  Bowman,  22  Cal.  23.) 


Art.  VI,  §  2  CONSTITUTION  OF  1879.  294 

The  Constitution  requires  the  concurrence  of  four  judges  to  pro- 
nounce a  judgment,  and  a  mere  failure  to  agree  cannot  have  the  effect, 
ipso  facto,  of  an  affirmance;  and  where  the  personnel  of  the  court  is 
soon  to  be  changed,  a  motion  to  affirm  the  judgment  on  account  of 
an  equal  division  of  opinion  will  be  denied.  (Luco  v.  De  Toro,  88 
Cal.  26,  11  L.  R.  A.  543,  25  Pac.  983.) 

But  where  there  is  no  probability  of  an  immediate  change  in  the 
personnel  of  the  court,  the  judgment  will  be  affirmed.  (Frankel  v. 
Deidesheimer,  93  Cal.  73,  28  Pae.  794;  Santa  Eosa  City  E.  E.  v.  Cen- 
tral St.  Ey.  Co.,  112  Cal.  436,  44  Pac.  733.) 

Judicial  days. — The  supreme  court  is  always  open  for  the  transac- 
tion of  business.     (People  v.  Heacock,  10  Cal.  App.  450,  102  Pac.  543.) 

Opinions. — The  legislature  cannot  require  the  supreme  court  to  give 
in  writing  reasons  for  its  decisions.  (Houston  v.  Williams,  13  Cal.  24, 
73  Am.  Dec.  565.) 

Behearings. — In  an  original  proceeding  in  the  supreme  court  the 
proper  practice  is  to  move  for  a  rehearing,  and  a  motion  for  a  new 
trial  is  not  proper.  (In  re  Philbrook,  108  Cal.  14,  40  Pac.  1061; 
Grangers'  Bank  v.  Superior  Court  of  San  Francisco,  101  Cal.  198,  35 
Pac.  642.) 

There  is  only  one  supreme  court,  and  the  jurisdiction  which  is 
vested  in  it  may  be  exercised  either  in  bank  or  in  department.  The 
court  in  bank  has  power  to  correct  an  error  in  or  modify  a  judgment 
rendered  in  a  department,  without  application  therefor,  and  without 
the  case  being  argued  in  bank.  (Niles  v.  Edwards,  95  Cal.  41,  30 
Pac.  134.) 

Although  a  petition  for  a  rehearing  by  the  court  in  bank  is  filed 
within  thirty  days  after  the  judgment  in  department,  if  it  does  not 
reach  the  hands  of  the  court  until  after  the  expiration  of  the  period 
allowed  by  the  Constitution  for  ordering  a  rehearing,  the  petition 
must  be  denied,  irrespective  of  its  merits.  (Durgin  v.  Neal,  82  Cal. 
595,  23  Pac.  133.) 

The  provision  of  this  section  as  to  the  granting  of  rehearings  in 
bank  after  the  decision  by  a  department  does  not  create  an  implica- 
tion against  the  constitutional  power  of  the  court  in  bank  to  grant 
rehearings  in  cases  determined  by  it  in  bank.  (In  re  Jessup,  81  Cal. 
408,  6  L.  E.  A.  594,  21  Pac.  976,  22.  Pac.  742,  1028.) 

The  supreme  court,  in  bank,  has  power  to  grant  rehearings  by 
orders  of  the  court  entered  upon  its  minutes,  without  the  written 
signatures  of  five  justices,  and  the  legislature  cannot  take  that  power 
away.  (In  re  Jessup,  81  Cal.  408,  6  L.  E.  A.  594,  21  Pac.  976,  22  Pac. 
742,  1028.) 

An  order  modifying  a  judgment  is  not  rendered  nugatory  by  rea- 
son of  the  failure  of  the  clerk  to  enter  it  in  the  minutes  until  after 
the  expiration  of  thirty  days  from  the  judgment  in  department. 
(Niles  V.  Edwards,  95  Cal.  41,  30  Pac.  134.) 

The  determination  by  the  court  on  passing  upon  an  application  for 
a  rehearing  that  the  justice  of  that  court,  and  not  the  justice  of  the 
court  of  appeals  selected  to  act  pro  tempore  on  account  of  the  illness 
of  the  former,  was  the  proper  one  to  act,  becomes  the  law  of  the  case, 
and  will  not  be  inquired  into  on  a  motion  to  set  aside  the  rehearing. 
(Eeeve  v.  Colusa  Gas  etc.  Co.,  151  Cal.  29,  91  Pac  802.) 


295  JUDICIAL   DEPARTMENT.  Art.  VI,  §  3 

Remittitur. — The  supreme  court  has  no  appellate  jurisdiction  over 
its  own  judgments.     (Leese  v.  Clark,  20  Cal.  387.) 

Therefore,  after  the  issuance  of  the  remittitur,  the  court  loses  juris- 
diction of  the  cause.  (Blanc  v.  Bowman,  22  Cal.  23;  Grogan  v. 
Buckle,  1  Cal.  193;  Mateer  v.  Brown,  1  Cal.  231;  Davidson  v.  Dallas, 
15  Cal.  75;  Herrlich  v.  McDonald,  83  Cal.  505,  23  Pac.  710;  In  re  Lev- 
inson,  108  Cal.  450,  41  Pac.  483,  42  Pac.  479;  Martin  v.  Wagner,  124 
Cal.  204,  56  Pac.  1023.) 

After  the  remittitur  has  been  duly  and  regularly  issued  without 
inadvertence,  the  court  has  no  power  to  recall  it,  except  in  a  case  of 
mistake,  fraud,  or  imposition.  (In  re  Levinson,  108  Cal.  450,  41  Pac. 
483,  42  Pac.  479.) 

The  mere  pendency  of  a  motion  to  modify  the  judgment  is  not  suf- 
ficient ground  for  recalling  the  remittitur,  when  it  was  issued  with- 
out inadvertence.     (Herrlich  v.  McDonald,  83  Cal.  505,  23  Pac.  710.) 

Nor  is  the  fact  that  it  was  issued  after  the  death  of  one  of  the 
parties  ground  for  recalling  it.  (Martin  v.  Wagner,  124  Cal.  204,  56 
Pac.  1023.) 

But  the  remittitur  may  be  recalled  if  issued  by  reason  of  fraud  or 
imposition.     (Trumpler  v.  Trumpler,  123  Cal.  248,  55  Pac.  1008.) 

Election  of  supreme  justices. 

Sec.  3.  The  chief  justice  and  the  associate  justices  shall 
be  elected  by  the  qualified  electors  of  the  state  at  large  at  the 
general  state  elections,  at  the  times  and  places  at  which  state 
officers  are  elected;  and  the  term  of  office  shall  be  twelve 
years,  from  and  after  the  first  Monday  after  the  first  day  of 
January  next  succeeding  their  election;  provided,  that  the 
six  associate  judges  elected  at  the  first  election  shall,  at  their 
first  meeting,  so  classify  themselves,  by  lot,  that  two  of  them 
shall  go  out  of  office  at  the  end  of  four  years,  two  of  them 
at  the  end  of  eight  years,  and  two  of  them  at  the  end  of 
twelve  years,  and  an  entry  of  such  classification  shall  be  made 
in  the  minutes  of  the  court  in  bank,  signed  by  them,  and  a 
duplicate  thereof  shall  be  filed  in  the  office  of  the  secretary 
of  state.  If  a  vacancy  occur  in  the  office  of  a  justice,  the  gov- 
ernor shall  appoint  a  person  to  hold  the  office  until  the  elec- 
tion and  qualification  of  a  justice  to  fill  the  vacancy,  which 
election  shall  take  place  at  the  next  succeeding  general  elec- 
tion, and  the  justice  so  elected  shall  hold  the  office  for  the 
remainder  of  the  unexpired  term.  The  first  election  of  the 
justices  shall  be  at  the  first  general  election  after  the  adop- 
tion and  ratification  of  this  Constitution. 


Art.  VI,  §4.  CONSTITUTION  OF  1879.  296 

JUSTICES. — Absence  of  a  justice  from  the  state  is  not  such  a 
vacancy  as  can  be  supplied  by  the  executive,  and  an  act  authorizing 
an  appointment  in  such  a  case  is  unconstitutional.  (People  v.  Wells, 
2  Cal.  198,  610.) 

Jurisdiction  of  supreme  court  and  courts  of  appeal. 

Sec.  4.  The  supreme  court  shall  have  appellate  jurisdic- 
tion on  appeal  from  the  superior  courts  in  all  cases  in  equity, 
except  such  as  arise  in  justices'  courts;  also,  in  all  cases  at 
law  which  involve  the  title  or  possession  of  real  estate,  or  the 
legality  of  any  tax,  impost,  assessment,  toll,  or  municipal  fine, 
or  in  which  the  demand,  exclusive  of  interest,  or  the  value 
of  the  property  in  controversy,  amounts  to  two  thousand 
dollars ;  also,  in  all  such  probate  matters  as  may  be  provided 
by  law ;  also,  on  questions  of  law  alone,  in  all  criminal  cases 
where  judgment  of  death  has  been  rendered ;  the  said  court 
shall  also  have  appellate  jurisdiction  in  all  cases,  matters, 
and  proceedings  pending  before  a  district  court  of  appeal 
which  shall  be  ordered  by  the  supreme  court  to  be  trans- 
ferred to  itself  for  hearing  and  decision  as  hereinafter  pro- 
vided. The  said  court  shall  also  have  power  to  issue  writs 
of  mandamus,  certiorari,  prohibition,  and  habeas  corpus, 
and  all  other  writs  necessary  or  proper  to  the  complete 
exercise  of  its  appellate  jurisdiction.  Each  of  the  justices 
shall  have  power  to  issue  writs  of  habeas  corpus  to  any 
part  of  the  state,  upon  petition  by  or  on  behalf  of  any  per- 
son held  in  actual  custody,  and  may  make  such  w^rits  return- 
able before  himself  or  the  supreme  court,  or  before  any 
district  court  of  appeal,  or  before  any  judge  thereof,  or 
before  any  superior  court  in  the  state,  or  before  any  judge 
thereof. 

The  state  is  hereby  divided  into  three  appellate  districts, 
in  each  of  which  there  shall  be  a  district  court  of  appeal 
consisting  of  three  justices.  The  first  district  shall  embrace 
the  following  counties :  San  Francisco,  Marin,  Contra  Costa, 
Alameda,  San  Mateo,  Santa  Clara,  Fresno,  Santa  Cruz, 
Monterey,  and  San  Benito. 

The  second  district  shall  embrace  the  following  counties : 
Tulare,  Kings,  San  Luis  Obispo,  Kern,  Inyo,  Santa  Barbara, 


297  JUDICIAL   DEPARTMENT.  Art.  VI,  §  4 

Ventura,  Los  Angeles,  San  Bernardino,  Orange,  Riverside, 
and  San  Diego. 

The  third  district  shall  embrace  the  folloAving  counties: 
Del  Norte,  Siskiyou,  Modoc,  Humboldt,  Trinity,  Shasta, 
Lassen.  Tehama,  Plumas,  Mendocino,  Lake,  Colusa,  Glenn, 
Butte,  Sierra,  Sutter,  Yuba,  Nevada,  Sonoma,  Napa,  Yolo, 
Placer,  Solano,  Sacramento,  El  Dorado,  San  Joaquin,  Ama- 
dor, Calaveras,  Stanislaus,  Mariposa,  Madera,  Merced,  Tuol- 
umne, Alpine,  and  Mono. 

The  supreme  court,  by  orders  entered  in  its  minutes,  may 
from  time  to  time  remove  one  or  more  counties  from  one 
appellate  district  to  another,  but  no  county  not  contiguous 
to  another  county  of  a  district  shall  be  added  to  such 
district. 

Said  district  courts  of  appeal  shall  hold  their  regular  ses- 
sions respectively  at  San  Francisco,  Los  Angeles,  and  Sac- 
ramento, and  they  shall  always  be  open  for  the  transaction 
of  business. 

The  district  courts  of  appeal  shall  have  appellate  juris- 
diction on  appeal  from  the  superior  courts  in  all  cases  at 
law  in  Avhich  the  demand,  exclusive  of  interest,  or  the  value 
of  the  property  in  controversy,  amounts  to  three  hundred 
dollars,  and  does  not  amount  to  two  thousand  dollars ;  also, 
in  all  cases  of  forcible  and  unlawful  entry  and  detainer 
(except  such  as  arise  in  justices'  courts),  in  proceedings  in 
insolvency,  and  in  actions  to  prevent  or  abate  a  nuisance ; 
in  proceedings  of  mandamus,  certiorari,  and  prohibition, 
usurpation  of  office,  contesting  elections  and  eminent  do- 
main, and  in  such  other  special  proceedings  as  may  be 
provided  by  law  (excepting  cases  in  which  appellate  juris- 
diction is  given  to  the  supreme  court)  ;  also,  on  questions  of 
law  alone,  in  all  criminal  cases  prosecuted  by  indictment  or 
information  in  a  court  of  record,  excepting  criminal  cases 
where  judgment  of  death  has  been  rendered.  The  said 
courts  shall  also  have  appellate  jurisdiction  in  all  cases, 
matters,  and  proceedings  pending  before  the  supreme  court 
which  shall  be  ordered  by  the  supreme  court  to  be  trans- 
ferred to  a  district  court  of  appeal  for  hearing  and  deci- 
sion.    The  said  courts  shall  also  have  poAver  to  issue  writs 


Art.  VI,  §  4  CONSTITUTION  OF  1879.  298 

of  mandamus,  certiorari,  prohibition,  and  habeas  corpus, 
and  all  other  writs  necessary  or  proper  to  the  complete  exer- 
cise of  their  appellate  jurisdiction.  Each  of  the  justices 
thereof  shall  have  power  to  issue  writs  of  habeas  corpus  to 
any  part  of  his  appellate  district  upon  petition  by  or  on 
behalf  of  any  person  held  in  actual  custody,  and  may  make 
such  writs  returnable  before  himself  or  the  district  court 
of  appeal  of  his  district,  or  before  any  superior  court  within 
his  district,  or  before  any  judge  thereof. 

The  supreme  court  shall  have  power  to  order  any  cause 
pending  before  the  supreme  court  to  be  heard  and  deter- 
mined by  a  district  court  of  appeal,  and  to  order  any  cause 
pending  before  a  district  court  of  appeal  to  be  heard  and 
determined  by  the  supreme  court.  The  order  last  men- 
tioned may  be  made  before  judgment  has  been  pronounced 
by  a  district  court  of  appeal,  or  within  thirty  days  after 
such  judgment  shall  have  become  final  therein.  The  judg- 
ments of  the  district  courts  of  appeal  shall  become  final 
therein  upon  the  expiration  of  thirty  days  after  the  same 
shall  have  been  pronounced. 

The  supreme  court  shall  have  power  to  order  causes  pend- 
ing before  a  district  court  of  appeal  for  one  district  to  be 
transferred  to  the  district  court  of  appeal  of  another  dis- 
trict for  hearing  and  decision. 

The  justices  of  the  district  courts  of  appeal  shall  be 
elected  by  the  qualified  electors  within  their  respective  dis- 
tricts at  the  general  state  elections  at  the  times  and  places 
at  which  justices  of  the  supreme  court  are  elected.  Their 
terms  of  office  and  salaries  shall  be  the  same  as  those  of 
justices  of  the  supreme  court,  and  their  salaries  shall  be 
paid  by  the  state.  Upon  the  ratification  by  the  people  of 
this  amendment  the  governor  shall  appoint  nine  persons 
to  serve  as  justices  of  the  district  courts  of  appeal  until  the 
first  Monday  after  the  first  day  of  January  in  the  year  1907, 
provided,  that  not  more  than  six  of  said  persons  shall  be 
members  of  the  same  political  party.  At  the  election  in -the 
year  1906  nine  of  such  justices  shall  be  elected  as  above  pro- 
vided, and  the  justices  of  each  district  court  of  appeal  shall 
so  classify  themselves  by  lot  that  one  of  them  shall  go  out 


299  JUDICIAL  DEPARTMENT.  Art.  VI,  §  4 

of  office  at  the  end  of  four  years,  one  of  them  at  the  end  of 
eight  years,  and  one  of  them  at  the  end  of  twelve  years ;  an 
entry  of  such  classification  shall  be  made  in  the  minutes  of 
the  court,  signed  by  the  three  justices  thereof,  and  a  dupli- 
cate thereof  filed  in  the  office  of  the  secretary  of  state.  If 
any  vacancy  occur  in  the  office  of  a  justice  of  the  district 
courts  of  appeal,  the  governor  shall  appoint  a  person  to 
hold  office  until  the  election  and  qualification  of  a  justice  to 
fill  the  vacancy;  such  election  shall  take  place  at  the  next 
succeeding  general  state  election  as  aforesaid;  the  justice 
then  elected  shall  hold  the  office  for  the  unexpired  term. 

One  of  the  justices  of  each  of  the  district  courts  of  appeal 
shall  be  the  presiding  justice  thereof,  and  as  such  shall  be 
appointed  or  elected  as  the  ease  may  be.  The  presence  of 
three  justices  shall  be  necessary  for  the  transaction  of  any 
business  by  such  court,  except  such  as  may  be  done  at  cham- 
bers, and  the  concurrence  of  three  justices  shall  be  neces- 
sary to  pronounce  a  judgment. 

Whenever  any  justice  of  the  supreme  court  is  for  any 
reason  disqualified  or  unable  to  act  in  a  cause  pending  be- 
fore it,  the  remaining  justices  may  select  one  of  the  justices 
of  a  district  court  of  appeal  to  act  pro  tempore  in  the  place 
of  the  justice  so  disqualified  or  unable  to  act. 

AVhenever  any  justice  of  a  district  court  of  appeal  is  for 
any  reason  disqualified  or  unable  to  act  in  any  cause  pend- 
ing before  it,  the  supreme  court  may  appoint  a  justice  of 
the  district  court  of  appeal  of  another  district,  or  a  judge 
of  a  superior  court  who  has  not  acted  in  the  cause  in  the 
court  below,  to  act  pro  tempore  in  the  place  of  the  justice  so 
disqualified  or  unable  to  act. 

No  appeal  taken  to  the  supreme  court  or  to  a  district 
court  of  appeal  shall  be  dismissed  for  the  reason  only  that 
the  same  was  not  taken  to  the  proper  court,  but  the  cause 
shall  be  transferred  to  the  proper  court  upon  such  terms 
as  to  costs  or  otherwise  as  may  be  just,  and  shall  be  pro- 
ceeded with  therein  as  if  regularly  appealed  thereto. 

All  statutes  now  in  force  allowing,  providing  for,  or  regu- 
lating  appeals  to  the  supreme  court  shall  apply  to  appeals 
to  the  district  courts  of  appeal  so  far  as  such  statutes  are 


Art.  VI,  §  4  CONSTITUTION  OF  1879.  300 

not  inconsistent  with  this  article  and  until  the  legislature 
shall  otherwise  provide. 

The  supreme  court  shall  make  and  adopt  rules  not  incon- 
sistent with  law  for  the  government  of  the  supreme  court 
and  of  the  district  courts  of  appeal  and  of  the  officers 
thereof,  and  for  regulating  the  practice  in  said  courts. 
(Amendment  adopted  November  8,  1904.) 

[OEIGINAL  SECTION.] 

See.  4.     The  supreme  court  shall  have  appellate  jurisdiction  in 
all  cases  of  equity,  except  such  as  arise  in  justices'  courts;  also,  in 
all  cases  at  law  which  involve  the  title  or  possession  of  real  estate, 
or  the  legality   of  any  tax,  impost,   assessment,   toll   or   municipal 
fine,  or  in  which  the  demand,  exclusive  of  interest  or  the  value  of 
the   property   in    controversy,    amounts   to    three   hundred   dollars; 
also,  in  cases  of  forcible  entry  and  detainer,  and  in  proceedings  in 
insolvency,  and  in  actions  to  prevent  or  abate  a  nuisance,  and  in 
all  such  probate  matters  as  may  be  provided  by  law;   also,  in  all 
criminal  cases  prosecuted  by  indictment  or  information  in  a  court 
of  record   on   questions   of  law  alone.     The   court  shall   also   have 
power    to   issue    writs    of    mandamus,    certiorari,    prohibition    and 
habeas  corpus,  and  all  other  writs  necessary  or  proper  to  the  com- 
plete exercise  of  its  appellate  jurisdiction.     Each  of  the  justices 
shall  have  power  to  issue  writs  of  habeas  corpus  to  any  part  of 
the   state,  upon   petition   by   or   on  behalf   of  any  person   held   in 
actual  custody,  and  may  make  such  writs  returnable  before  him- 
self or  the  supreme  court,  or  before  any  superior  court  in  the  state 
or  before  any  judge  thereof. 
JURISDICTION — In    general, — The    jurisdiction    of    the    courts    as 
established  by  the  Constitution  cannot  be  altered  by  the  legislature. 
(Thompson  v."^  Williams,  6  Cal.  88;  Hicks  v.  Bell,  3  Cal.  219;  Burgoyne 
V.  Board  of  Supervis^Jts,  5  Cal.  9;  Parsons  v.  Tuolumne  Co.  Water  Co., 
5  Cal.  43,  63  Am.  Dec.  76;  People  v.  Applegate,  5  Cal.  295;  Fitzgerald 
V.  Urton,  4  Cal.  235;  Wilson  v.  Roach,  4  Cal.  362;   Zander  v.  Coe,  5 
Cal.   230;    Haight   v.    Gay,   8   Cal.    297,    68   Am.   Dec.    323;    People   v. 
Peralta,  3  Cal.  379;  Caulfield  v.  Hudson,  3  Cal.  389.     But  see  Seale  v. 
Mitchell,  5  Cal.  401;  People  v.  Day,  15  Cal.  91.) 

An  aflSrmative  grant  of  jurisdiction  is  negative  of  all  others.  (Bur- 
goyne V.  Board  of  Supervisors,  5  Cal.  9.) 

But  the  grant  of  original  jurisdiction  to  a  particular  court,  of  a 
particular  class  of  cases,  without  any  words  excluding  other  courts 
from  exercising  jurisdiction  in  the  same  cases,  does  not  deprive  other 
courts  of  concurrent  jurisdiction  in  such  cases,  when  such  courts  are 
given  jurisdiction  in  general  terms  broad  enough  to  include  such  par- 
ticular cases.  (Courtwright  v.  Bear  River  etc.  Min.  Co.,  30  Cal.  573; 
Zander  v.  Coe,  5  Cal.  230,  distinguished.) 

Where  jurisdiction  is  given  in  all  cases  not  otherwise  provided  for 
it  is  not  exclusive.     (People  v.  Fowler,  9  Cal.  85.) 

Consent  will  not  confer  jurisdiction.      (Feillett  v.  Engler,  8  Cal.  76.) 


301  JUDICIAL    DEPARTMENT.  Art.  VI,  §  4 

Supreme  court. — The  supreme  court  acquired  its  jurisdiction  from 
the  Constitution,  and  such  jurisdiction  can  neither  be  enlarged  nor 
abridged  by  the  legislature.  (In  re  Jessup,  81  Gal.  408,  6  L.  R.  A. 
594,  21  Pac.  976,  22  Pac.  742,  1028;  Ex  parte  Attorney  General,  1  Gal. 
85.) 

The  Constitution  has  not  clothed  the  supreme  court  with  the  same 
powers  and  jurisdiction  as  the  court  of  king's  bench  in  England.  (Ex 
parte  Attorney  General,  1  Gal.  85.) 

District  courts  of  appeal. — Under  the  plenary  grant  of  power  by 
this  section  and  section  53  of  the  Code  of  Civil  Procedure,  the  district 
courts  of  appeal  have  full  authority  to  either  affirm  or  reverse  or  mod- 
ify the  judgment  or  order  of  the  trial  court  in  any  case  before  it. 
(Machado  v.  Machado,  26  Gal.  App.  16,  145  Pac.  738.) 

Procedure. — The  right  of  appeal  is  conferred  by  the  Constitution, 
and  statutes  and  rules  of  procedure  for  its  exercise  are  to  be  liberally 
construed;  and  no  appeal  will  be  dismissed  on  technical  grounds,  when 
there  has  been  no  violation  or  disregard  of  any  express  rules  of  pro- 
cedure.    (Estate  of  Nelson,  128  Gal.  242,  60  Pac.  772.) 

The  supreme  court  acquires  jurisdiction  upon  the  filing  of  the  notice 
of  appeal  in  the  lower  court,  and  the  jurisdiction  is  not  divested  or 
suspended  either  on  account  of  the  failure  to  file  a  transcript  on  ap- 
peal, or  by  loss  thereof.  (Estate  of  Davis,  151  Gal.  318,  121  Am.  St. 
Eep.  105,  86  Pac.  183,  90  Pac.  711.) 

When  jurisdiction  is  given  to  the  supreme  court  of  a  particular 
case,  it  has  jurisdiction  of  all  appeals  therein,  whether  or  not  they 
involve  the  merits.  (Rickey  Land  etc.  Co.  v.  Glader,  6  Gal.  App.  113, 
91  Pac.  414.) 

The  legislature  cannot  impair  or  take  away  the  appellate  jurisdic- 
tion of  the  supreme  court,  but  it  may  prescribe  the  mode  in  which 
appeals  may  be  taken.     (Haight  v.  Gay,  8  Gal.  297,  68  Am.  Dec.  323.) 

It  is  the  duty  of  the  supreme  court,  whose  jurisdiction  is  defined 
by  the  Constitution,  to  secure  uniformity  in  the  administration  of  jus- 
tice, and  the  legislature,  as  a  co-ordinate  branch  of  the  government, 
cannot  interfere  with  that  function,  or  control  the  use  by  the  appel- 
late court  of  the  power  and  discretion  vested  in  it.  (San  Jose  Ranch 
Co.  V.  San  Jose  etc.  Water  Co.,  126  Gal.  322,  58  Pac.  824.) 

The  supreme  court  cannot  exercise  appellate  jurisdiction  by  means 
of  a  writ  of  prohibition,  without  any  appeal,  and  in  a  case  to  whieli 
its  appellate  jurisdiction  does  not  extend.  (Powelson  v.  Lockwood, 
82  Gal.  613,  23  Pac.  143.) 

When  the  Constitution  gives  the  supreme  court  jurisdiction,  and 
the  legislature  fails  to  prescribe  the  means  for  taking  the  appeal,  the 
supreme  court  has  inherent  power  to  establish  any  appropriate  sys- 
tem of  procedure.  (People  v.  Jordan,  65  Gal.  644,  4  Pac.  683.  But 
see  Warner  v.  Hall,  1  Gal.  90;  Warner  v.  Kelly,  1  Gal.  91;  White  v. 
Lighthall,  1  Gal.  347.) 

If  the  legislature  has  not  provided  a  mode  of  exercising  the  juris- 
diction conferred  by  the  Constitution,  a  case  may  be  brought  up  from 
an  interior  court  to  the  supreme  court  by  writ  of  error.  (Ex  parte 
Thistleton,  52  Gal.  220;  Adams  v.  Town,  3  Gal.  247.) 

The  legislature  may  prescribe  the  procedure  by  which  the  jurisdic- 
tion conferred  is  to  be  exercised,  provided  the  regulations  adopted  do 


Art.  VI,  §  4 


CONSTITUTION   OF   1879. 


302 


not   substantially  impair  the   constitutional  power   of  the   court,   or 
practically  defeat  its  exercise.     (Ex  parte  Harker,  49  Cal.  465.) 

Rules. — The  supreme  court  has  power  to  make  rules  having  tha 
force  of  positive  law  so  far  as  the  rights  of  the  parties  are  con- 
cerned, if  they  do  not  conflict  with  any  act  of  the  legislature. 
(Brooks  V,  Union  Trust  etc.  Co.,  146  Cal.  134,  79  Pac.  843.) 

Rule  XXX  of  the  supreme  court,  requiring  a  petition  for  rehearing 
to  be  served  upon  the  adverse  party  within  twenty  days  after  judg- 
ment and  allowing  an  answer  thereto,  is  valid.  (Brooks  v.  Union 
Trust  etc.  Co.,  146  Cal.  134,  79  Pac.  843.) 

Rules  adopted  by  the  supreme  court  for  the  government  of  appellate 
practice  are  as  much  part  of  our  system  of  procedure  as  the  rules 
promulgated  by  the  legislature;  and  the  consequence  of  a  failure  to 
observe  them  rests  upon  the  lawyer  and  not  the  court.  (Reclamation 
Dist.  No.  70  V.  Sherman,  11  Cal.  App.  399,  105  Pac.  277.) 
>  Rules  of  court.  See  notes,  41  Am.  St.  Rep.  639;  7  R.  C.  L., 
h  §§50-56,  pp.  1023-1029. 

Salaries. — The  act  fixing  the  salaries  of  justices  of  the  supreme  court 
at  eight  thousand  dollars  cannot  affect  the  salaries  of  present  incum- 
bents of  that  court,  and  cannot  be  looked  to  as  a  measure  of  the 
salaries  of  justices  of  district  courts  of  appeal.  (Harrison  v.  Colgan, 
148  Cal.  69,  82  Pac.  674.) 

Removal  before  judgment. — The  power  to  remove  causes  from  the 
district  court  of  appeal  is  entirely  discretionary,  and  the  parties  have 
no  right  to  insist  upon  the  exercise  of  that  power.     (People  v.  Davis, 

147  Cal.  346,  81  Pac.  718.) 

A  cause  will  not  be  transferred  to  the  district  court  of  appeal  to 
accommodate  the  parties  or  to  facilitate  a  decision.     (Gates  v.  Green, 

148  Cal.  728,  84  Pac.  37.) 

Where  a  writ  of  prohibition  is  applied  for  from  the  supreme  court 
to  prevent  the  trial  of  a  case  of  which  the  district  court  of  appeal  has 
jurisdiction,  the  proceeding  will  be  transferred  to  that  court.  (Col- 
lins v.  Superior  Court,  147  Cal.  264,  81  Pac.  509.) 

Where  the  appeal  is  erroneously  taken  to  the  district  court  of  ap- 
peal, instead  of  to  the  supreme  court,  the  proper  practice  is  to  file 
the  record  in  the  court  to  which  the  appeal  was  taken  and  to  move 
in  that  court  to  transfer  the  cause  to  the  supreme  court.  (In  re  Rus- 
sell, 148  Cal.  768,  84  Pac.  155.) 

Removal  after  judgment. — The  supreme  court  will  not  exercise  its 
power  to  remove  a  cause  pending  in  a  district  court  of  appeal  after 
decision  for  the  purpose  of  revising  its  decision  upon  questions  of 
fact.     (People  v,  Davis,  147  Cal.  346,  81  Pac.  718.) 

The  supreme  court  will  only  remove  a  case  pending  in  a  district 
court  of  appeal  after  decision  when  it  is  necessary  to  secure  uniform- 
ity of  decision  or  to  settle  important  questions  of  law.  (People  v. 
Davis,  147  Cal.  346,  81  Pac.  718.) 

Where  one  of  the  justices  signing  an  order  transferring  a  cause  to 
the  supreme  court,  after  a  decision  by  the  court  of  appeals,  signed  the 
order  while  in  the  state,  but  left  the  state  before  it  received  the  sig- 
natures of  the  requisite  number  of  judges  to  make  it  effective,  such 
order  is  a  nullity.     (People  v.  Rucf,  14  Cal.  App.  576,  114  Pac.  48,  54.) 


303  JUDICIAL   DEPARTMENT.  Art.  VI,  §  4 

Where  the  district  court  of  appeal  has  issued  an  alternative  writ 
of  mandate  which  acts  as  a  stay,  the  effect  thereof  is  not  affected 
by  a  judgment  of  the  court  denying  the  peremptory  writ  which  has 
not  become  final  by  the  expiration  of  thirty  days.  (Noel  v.  Smith,  2 
Cal.  App.  158,  83  Pac.  167.) 

The  supreme  court  has  power,  within  thirty  days  after  the  decision 
of  the  district  court  of  appeal  has  become  final,  to  order  the  cause 
heard  and  determined  by  itself.  (Noel  v.  Smith,  2  Cal.  App.  158,  83 
Pac.  167.) 

The  judgment  of  a  district  court  of  appeal  is  not  final  until  the 
expiration  of  thirty  days  after  the  judgment  is  pronounced.  (Noel 
V.  Smith,  2  Cal.  App.  158,  83  Pac.  167.) 

An  order  of  the  district  court  of  appeal  denying  a  rehearing,  but 
modifying  the  opinion  theretofore  rendered,  is  not  a  judgment,  and 
the  time  within  which  the  supreme  court  might  order  a  transfer  of 
the  case  runs  from  the  original  judgment.  (National  Bank  v.  Los 
Angeles  Iron  etc.  Co.,  2  Cal.  App.  659,  84  Pac.  466,  468.) 

The  supreme  court  has  no  authority  to  order  a  transfer  of  a  cause 
from  the  district  court  of  appeal  after  the  lapse  of  sixty  days  from 
the  giving  of  the  judgment  of  the  district  court.  (National  Bank  v. 
Los  Angeles  Iron  etc.  Co.,  2  Cal.  App.  659,  84  Pac.  466,  468;  People 
V.  Euef,  14  Cal.  App.  576,  114  Pac.  48,  54.) 

In  cases  going  in  the  first  instance  to  the  court  of  appeal,  a  re- 
hearing will  be  granted  by  the  supreme  court  only  when  error  appears 
upon  the  face  of  the  opinion  of  the  appellate  court,  or  when  a  doubt- 
ful and  important  question  is  presented  upon  which  further  argument 
is  desired  by  the  court.  (Burke  v.  Maze,  10  Cal.  App.  206,  101  Pac. 
438,   440.) 

In  causes  referred  to  the  court  of  appeal  by  the  supreme  court,  the 
supreme  court,  in  passing  upo»  an  application  for  rehearing,  will  look 
into  the  record  to  see  whether  anything  deserving  consideration  has 
been  overlooked  in  deciding  the  cause,  or  any  of  the  facts  miscon- 
ceived in  material  particulars.  (Burke  v.  Maze,  10  Cal.  App.  206,  101 
Pac.  438,  440.) 

A  justice  may  join  in  an  order  granting  a  rehearing  apart  from  any 
consultation  and  from  the  presence  of  his  associates.  (People  v. 
Euef,  14  Cal.  App.  576,  114  Pac.  48,  54.) 

The  court  may  exercise  the  power  to  grant  a  rehearing  without  any 
petition  or  application  therefor.  (People  v.  Euef,  14  Cal.  App.  576, 
114  Pac.  48,  54.) 

The  supreme  court  has  no  power  to  transfer  cases  in  habeas  corpus. 
(Matter  of  Zany,  164  Cal.  724,  130  Pac.  710.) 

Admission  of  attorneys. — The  supreme  court  now  has  no  authority 
to  admit  attorneys  to  practice,  that  power  having  been  conferred  by 
the  legislature  upon  the  district  courts  of  appeal.  (In  re  Mock,  146 
Cal.  378,  80  Pac.  64.) 

Cases  at  law. — The  meaning  of  this  section  is  that  the  supreme 
court  shall  have  appellate  jurisdiction  in  all  cases  at  law;  provided, 
that  when  the  subject  of  litigation  is  capable  of  pecuniary  compensa- 
tion, the  matter  in  dispute  must  exceed  in  value  or  amount  the  sura 
cf  three  hundred  dollars,  unless  a  question   of  the  legality  of  a  tax, 


Art.  VI,  §  4 


CONSTITUTION   OF    1879. 


304 


etc.,  is  drawn  in  question.  (Conant  v.  Conant,  10  Cal.  249,  70  Am. 
Dec.  717.) 

Therefore,  the  supreme  court  has  jurisdiction  of  a  case  where  the 
matter  in  dispute  is  incapable  of  pecuniary  estimation.  (Conant  v. 
Conant,  10  Cal.  249,  70  Am.  Dec.  717.) 

The  words  "matter  in  dispute"  mean  the  subject  of  litigation — the 
matter  for  which  suit  is  brought — and  do  not  include  costs.  (Dumphy 
V.  Guindon,  13  Cal.  28;  Maxfield  v.  Johnson,  30  Cal.  545;  Zabriskie  v. 
Torrev,  20  Cal.  173;  Votan  v.  Eeese,  20  Cal.  89;  Bolton  v.  Landers,  27 
Cal.  106;  Henigan  v.  Ervin,  110  Cal.  37,  42  Pac.  457.  Contra,  Gordon 
V.  Eoss,  2  Cal.  156,  overruled.) 

But  where  the  supreme  court  obtains  jurisdiction  of  the  appeal,  it 
can  correct  the  costs  in  the  judgment.     (Votan  v.  Reese,  20  Cal.  89.) 

Neither  is  percentage  allowed  by  statute  any  part  of  the  matter  in 
dispute.     (Zabriskie  v.  Torrey,  20  Cal.  173.) 

Under  the  former  Constitution,  before  the  amendments  of  1862,  it 
was  held  that  the  interest  due  forms  part  of  the  matter  in  dispute. 
(Skillman  v.  Lachman,  23  Cal.  198,  83  Am.  Dec.  96;  Malson  v.  Vaughn, 
23  Cal.  61.) 

But  under  the  amendment  of  1862  and  under  the  present  Constitu- 
tion the  demand  must  exceed  three  hundred  dollars  "exclusive  of  in- 
terest."    (Dashiell  v.  Slingerland,  60  Cal.  653.) 

In  cases  at  law,  when  the  demand  in  controversy,  exclusive  of  in- 
terest, is  less  than  three  hundred  dollars,  the  supreme  court  has  no 
jurisdiction.  (Sweet  v.  Tice,  45  Cal.  71;  Votan  v.  Eeese,  20  Cal.  89; 
Maxfield  v.  Johnson,  30  Cal.  545;  Hopkins  v.  Cheeseman,  28  Cal.  180; 
Dungan  v.  Clark,  159  Cal.  30,  112  Pac.  718.) 

The  words  "cases  at  law  .  .  .  which  involve  .  .  .  the  legality  of 
any  tax,"  etc.,  refer  to  civil,  as  distinguished  from  criminal,  cases. 
(People  V.  Johnson,  30  Cal.  98.) 

The  record  must  affirmatively  show  that  the  case  involves  the  con- 
stitutional amount,  or  the  supreme  court  will  not  entertain  jurisdic- 
tion.    (Doyle  V.  Seawall,  12  Cal.  280.) 

If  the  appeal  is  by  the  plaintiff  and  the  verdict  for  the  defendant, 
it  is  sufficient  if  the  amount  claimed  by  the  complaint  exceeds  the 
jurisdictional  amount.  (Votan  v.  Eeese,  20  Cal.  89;  Skillman  v.  Lach- 
man, 23  Cal.  198,  83  Am.  Dec.  96.) 

The  ad  damnum  clause  of  the  complaint  is  the  test  of  jurisdiction 
of  both  the  superior  and  supreme  courts,  and  if  the  lower  court  had 
jurisdiction,  the  supreme  court  also  has  jurisdiction,  whatever  the 
amount  recovered,  and  whether  the  appeal  be  taken  by  the  plaintiff 
or  the  defendant.  (Solomon  v.  Eeese,  34  Cal.  28,  overruling  Votan  v. 
Reese,  20  Cal.  89;  Dashiell  v.  Slingerland,  60  Cal.  653;  Lord  v.  Gold- 
berg, 81  Cal.  596,  15  Am.  St.  Eep.  82,  22  Pac.  1126;  Henigan  v.  Ervin, 
110   Cal.  37,  42  Pac.  457.) 

Where  the  plaintiff,  having  a  judgment  of  more  than  the  jurisdic- 
tional amount,  sought  to  have  a  judgment  against  him  for  less  than 
two  hundred  dollars  set  off  against  it,  the  supreme  court  has  no  juris- 
diction of  an  appeal  from  an  order  denying  the  motion.  (Crandall 
V.  Blen,  15  Cal.  406.) 

The  fact  that  an  offset  is  pleaded  by  the  defendant  which,  together 
with  the  demand  of  the  plaintiff,  swells  the  amount  to  more  than  the 


305  JUDICIAL.   DEPARTMENT.  Alt.  VI,  §  4 

jurisdictional  amount,  does  not  give  the  court  jurisdiction.     (Simmons 
V.  Brainard,  14  Cal.  278.) 

Amount   in   controversy  for   purpose   of   appeal   where   defendant 
has  filed  counterclaim.     See  note,  Ann.  Cas.  1914A,  1041. 

The  appellate  jurisdiction  of  the  supreme  court  extends  to  an  ap- 
peal from  a  judgment  of  a  superior  court  dismissing  a  writ  of  cer- 
tiorari, snd  affirming  a  judgment  of  a  justice's  coairt,  which  amounts 
to  less  than  three  hundred  dollars.  (Heinlen  v.  Phillips,  88  Cal.  557, 
26  Pac.  366.  Bieuenfeld  v.  Fresno  etc.  Co.,  82  Cal.  425,  22  Pac.  1113, 
overruled.) 

The  supreme  court  has  no  jurisdiction  of  an  appeal  from  the  su- 
perior court  in  an  action  commenced  in  the  justice's  court  under  sec-- 
tion  1206  of  the  Civil  Code,  whether  the  action  be  viewed  as  a  suit 
in  equity  to  enforce  a  lien  upon  personal  property,  or  an  action  at  law 
for  wages  due.     (Edsall  v.  Short,  122  Cal.  533,  55  Pac.  327.) 

The  fact  that  the  'defendant  in  an  action  in  a  justice's  court  sets 
up  a  counterclaim  in  excess  of  three  hundred  dollars  does  not  give 
the  supreme  court  jurisdiction  on  appeal.  (Maxfield  v.  Johnson,  30 
Cal.  545.) 

A  proceeding  in  the  nature  of  a  quo  warranto  to  try  the  title  to  a 
public  office,  where  the  court  can  impose  a  fine  of  five  thousand  dol- 
lars, is  a  case  at  law  in  which  the  demand  amounts  to  three  hundred 
dollars.  (People  v.  Perry,  79  Cal.  105,  21  Pac.  423;  People  v.  Bing- 
ham, 82  Cal.  238,  22  Pac.  1039.) 

A  writ  of  error  will  not  lie  to  reverse  the  judgment  of  the  superior 
court  granting  a  nonsuit  on  appeal  from  a  judgment  of  a  justice's 
court.     (Pool  v.  Superior  Court,  2  Cal.  App.  533,  84  Pac.  53.) 

No  appeal  lies  to  the  district  court  of  appeal  from  any  order  or 
judgment  of  the  superior  court  upon  appeal  from  a  justice's  court. 
(Pool  V.  Superior  Court,  2  Cal.  App.  533,  84  Pac.  53.) 

An  appeal  will  not  lie  to  the  court  of  appeals  from  an  order  of  the 
superior  court  dismissing  an  appeal  from  a  judgment  of  a  justice's 
court  in  an  action  at  law  involving  less  than  three  hundred  dollars. 
(Willow  Land  Co.  v.  Goldschmidt,  11  Cal.  App.  297,  104  Pac.  841.) 

An  action  for  damages  exceeding  two  thousand  dollars  is  within 
the  jurisdiction  of  the  supreme  court.  (Randall  v.  Freed,  7  Cal.  App. 
553,  94  Pac.  1056;  Wright  v.  Sonoma  Co.,  7  Cal.  App.  567,  96  Pac.  333; 
McAulay  v.  Tahoe  Ice  Co.,  3  Cal.  App.  642,  86  Pac.  912.) 

Jurisdiction  dependent  on  value,  how  to  be  determined.     See  note, 
21  Am.  St.  Rep.  617. 

The  district  court  of  appeals  has  appellate  jurisdiction  in  cases  at 
law  where  jurisdiction  depends  on  the  amount  in  controversy,  only 
where  the  demand  exclusive  of  interest,  or  the  value  of  the  property 
in  controversy  amounts  to  three  hundred  dollars,  and  does  not  amount 
to  two  thousand  dollars.  (Erving  v.  Napa  Valley  Brewing  Co.,  17 
Cal.  App.  367,  119  Pac.  940;  Beswick  v.  Churchill  Co.,  21  Cal.  App. 
721,  132  Pac.  771.) 

The  original  jurisdiction  of  the  superior  court  and  the  appellate 
jurisdiction  of  the  district  courts  of  appeal  are  identical  in  "all  cases 
at  law,  in  which  the  demand,  exclusive  of  interest,  or  the  value  of 
Constitution — 20 


I 


Alt.  VI,  §  4 


CONSTITUTION    OF    1879. 


306 


the  property  in  controversy,  amounts  to  three  hundred  dollars."  (J. 
Dewing  Co.  v.  Thompson,  19  Cal.  App.  85,  124  Pac.  1035.) 

SUITS  IN  EQUITY. — An  action  to  enforce  a  trust  is  a  suit  in 
equity.     (Marston  v.  Kuhland,  2  Cal.  App.  316,  84  Pac.  357.) 

A  suit  to  avoid  a  decree  of  foreclosure  taken  by  default  is  within 
the  equitable  jurisdiction  of  the  supreme  court.  (Litch  v.  O'Connor, 
8  Cal.  App.  489,  97  Pac.  207.) 

An  action  for  maintenance  is  a  suit  in  equity.  (Hiner  v,  Hiner,  5 
Cal.  App.  546,  90  Pac.  957.) 

A  suit  to  restrain  a  trespass  is  in  equity  and  within  the  jurisdiction 
of  the  supreme  court.  (Barnes  v.  Daveck,  7  Cal.  App.  220,  94  Pac. 
779.) 

Appellate  jurisdiction  of  all  cases  in  equity  is  given  to  the  supreme 
court.     (Rickey  Land  etc.  Co.  v.  Glader,  6  Cal.  App.  113,  91  Pac.  414.) 

An  action  to  enjoin  the  diversion  of  water  is  a  suit  in  equity. 
(Rickey  Land  etc.  Co.  v.  Glader,  6  Cal.  App.  113,  91  Pac.  414.) 

A  suit  to  quiet  title  is  equitable  and  within  the  jurisdiction  of  the 
supreme  court.     (Davey  v.  Mulroy,  7  Cal.  App.  1,  93  Pac.  297.) 

Under  the  general  equity  powers  the  superior  court  has  power  to 
remedy  any  wrong  committed  by  election  boards.  (Cerini  v.  De 
Long,  7  Cal.  App.  398,  94  Pac.  582.) 

An  action  to  foreclose  a  mechanic's  lien  is  a  case  in  equity,  although 
the  liens,  by  order  of  the  court,  are  to  be  paid  out  of  a  fund  deposited 
in  court  by  the  owner  of  the  property.  (Stockton  L.  Co.  v.  Schuler, 
7  Cal.  App.  257,  94  Pac.  399.) 

A  suit  to  foreclose  a  mortgage  is  within  the  equitable  jurisdiction 
of  the  supreme  court.  (Aetna  Indemnity  Co.  v.  Altadena  Mining  etc. 
Co.,  11  Cal.  App.  26,  104  Pac.  470.) 

Judgments  in  contempt  eases  are  nonappealable.  (Gale  v.  Tuolumne 
County  Water  Co.,  169  Cal.  46,  145  Pac.  532.) 

Real  proi)«rty. — Where  a  case  is  certified  to  the  superior  court 
from  the  justice's  court  on  the  ground  that  it  involves  the  title  or 
possession  of  real  property,  the  supreme  court  has  jurisdiction  on 
appesCl,  although  no  question  is  raised  on  that  subject  on  the  appeal. 
(Baker  v.  Southern  Cal.  Ry.  Co.,  UO  Cal.  455,  42  Pac.  975.) 

A  mere  statement  by  counsel  that  a  case  involves  the  title  or  pos- 
session of  real  property  is  not  sufficient  to  give  the  supreme  court 
jurisdiction.  (Raisch  v.  Sausalito  Land  etc.  Co.,  131  Cal.  215,  63  Pac. 
346.) 

The  supreme  court  has  jurisdiction  of  an  action  for  the  usurpation 
of  a  franchise  for  a  toll  road,  since  the  right  to  the  possession  of 
real  property  is  involved.  (People  v,  Horsley,  65  Cal.  381,  4  Pac. 
384.) 

The  supreme  court  has  jurisdiction  in  actions  for  damages  to  real 
property,  when  the  title  thereto  is  involved,  although  the  damages 
claimed  are  less  than  three  hundred  dollars.  (Doherty  v.  Thayer,  31 
Cal.  140.) 

The  district  courts  of  appeal  have  appellate  jurisdiction  in  all 
cases  specifically  mentioned  as  belonging  to  its  jurisdiction,  although 
they  may  incidentally  involve  the  title  to  or  possession  of  real  estate, 
or  the  legality  of  a  tax.     (Keech  v.  Joplin,  157  Cal.  1,  106  Pac.  222.) 


307  JUDICIAL   DEPARTMENT.  Art.  VI,  §  4 

"Possession"  under  this  section  means  such  a  possession  of  real 
property  as  has  relation  to  title  or  is  necessary  to  the  enforcement  or 
defeat  of  the  cause  of  action  asserted.  (O'Meara  v.  Hables,  163  Cal. 
240,  124  Pac.  1003.) 

The  supreme  court  has  appellate  jurisdiction  on  appeal  from  the  su- 
perior courts  in  all  cases  at  law  which  involve  the  title  or  possession 
of  real  estate,  and  the  district  court  of  appeals  has  no  jurisdiction 
whatsoever  of  such  a  case.  (Thomas  v.  Thomas,  22  Cal.  App.  806,  136 
Pac.  510.) 

Fines. — A  fine  imposed  by  a  county  court  for  wrongfully  demand- 
ing and  collecting  toll  is  not  a  municipal  fine.  (People  v.  Johnson,  30 
Cal.  98.) 

On  the  trial  of  a  criminal  action  for  wrongfully  collecting  toll,  the 
legality  of  the  fine  to  be  imposed  in  case  of  a  conviction  is  not  in- 
volved.    (People  V.  Johnson,  30  Cal.  98.) 

The  word  assessment  as  used  in  the  clause  of  this  section  confer- 
ring appellate  jurisdiction  on  the  supreme  court  of  all  cases  involv- 
ing "the  legality  of  any  .  .  .  assessment,"  refers  to  assessments  re- 
lating to  public  taxation  or  to  raise  funds  for  local  public  improve- 
ments. (Bottle  Mining  and  Milling  Co.  v.  Kern,  154  Cal.  96,  97  Pac. 
25.) 

Special  cases. — The  supreme  court  has  jurisdiction  of  an  appeal  from 
an  order  discharging  an  insolvent.  (Fisk  v.  His  Creditors,  12  Cal. 
281.) 

An  arbitration  is  a  special  proceeding.  (Fairchild  v.  Doten,  42  Cal. 
125.) 

A  proceeding  to  condemn  land  for  the  use  of  a  railroad  company  is 
a  "special  case."     (Stockton  etc.  Co.  v.  Galgiani,  49  Cal.  139.) 

A  contest  of  the  right  to  purchase  state  lands  is  a  special  proceed- 
ing within  the  jurisdiction  of  the  supreme  court.  (Risdon  v.  Prewett, 
8  Cal.  App.  434,  97  Pac.  73.) 

Neither  the  supreme  court  nor  the  district  courts  of  appeal  have 
jurisdiction  of  an  appeal  from  a  judgment  in  a  proceeding  under  sec- 
tion 772  of  the  Penal  Code,  for  the  removal  of  public  officers.  (People 
V.  McKamy,  168  Cal.  531,  143  Pac.  752.) 

Special  orders. — The  supreme  court  has  appellate  jurisdiction  of 
all  special  orders  made  after  final  judgment  in  the  superior  court, 
without  reference  to  the  amount  involved.  (Southern  Cal.  Ry.  Co.  v. 
Superior  Court,  127  Cal.  417,  59  Pac.  789;  Harron  v.  Harron,  123  Cal. 
508,  56  Pac.  334.  Langan  v.  Langan,  83  Cal.  618,  23  Pac.  1084,  and 
Fairbanks  v.  Lampkin,  99  Cal.  429,  34  Pac.  101,  overruled.) 

In  all  cases,  legal  or  equitable,  when  the  supreme  court  has  appel- 
late jurisdiction  of  the  matter  brought  in  controversy  in  the  lower 
court,  the  "appealability  of  an  order  made  before  or  after  final  judg- 
ment is  not  controlled  by  the  amount  involved  in  such  order.  (Sierra 
Union  etc.  Min.  Co.  v.  Wolfif,  144  Cal.  430,  77  Pac.  1038.) 

A  special  order  after  judgment,  refusing  to  strike  out  a  cost  bill  in 
the  superior  court  in  a  case  appealed  from  the  justice's  court,  is  not 
appealable  to  the  supreme  court,  although  the  cost  bill  amounts  to 
over  three  hundred  dollars.  (Ilenigan  v.  Ervin,  110  Cal.  37,  42  Pac 
457.) 


Art.  VI,  §  4 


CONSTITUTION    OF    1879. 


308 


^  An  order  for  twenty-five  dollars  each  month  alimony,  being  a  con- 
tinuing order,  may  be  reviewed  upon  appeal.  (Langan  v.  Langan, 
S6  Cal.  132,  24  Pac.  852.  See  Harron  v.  Harron,  123  Cal.  508,  56  Pac' 
334.) 

Criminal  cases. — The  supreme  court  has  jurisdiction  in  criminal 
cases  upon  questions  of  law  alone.  (People  v.  Logan,  123  Cal.  414, 
o6  Pac.  56;  People  v.  Kuches,  120  Cal.  566,  52  Pac.  1002;  People  v! 
Smallman,  55  Cal.  185;  People  v.  Williams.  133  Cal.  165,  65  Pac.  323.) 

The  propriety  of  a  conviction  on  the  evidence  becomes  a  question 
of  law  only  when  there  is  a  clear  failure  of  proof.  (People  v.  Kuches 
120  Cal.  566,  52  Pac.  1002;  People  v.  Smallman,  55  Cal.  185.) 

The  supreme  court  has  appellate  jurisdiction  of  all  misdemeanors 
prosecuted  by  indictment  or  information.  (People  v.  Jordan,  65  Cal. 
644,  4  Pac.  683,  prescribing  a  method  for  taking  such  appeals.) 

Under  the  former  Constitution,  the  supreme  court  had  no  jurisdic- 
tion in  criminal  cases,  except  such  as  amount  to  felony.  (People  v. 
Apgar,  35  Cal.  389;  People  v.  Johnson,  30  Cal.  98;  People  v.  Shear,  7 
Cal.  139;  People  v.  Vick,  7  Cal.  165;  People  v.  Applegate,  5  Cal.  295.) 

The  supreme  court  has  jurisdiction  of  an  appeal  from  a  judgment 
sustaining  a  demurrer  to  an  indictment  for  misconduct  in  office. 
(People  V.  Kalloch,  60  Cal.  113.) 

The  supreme  court  has  jurisdiction  of  an  appeal  in  a  criminal  case, 
although  the  lower  court  had  no  jurisdiction.  (People  v.  Pingree  61 
Cal.  141.)  ' 

The  supreme  court  has  no  jurisdiction  of  an  appeal  from  a  judg- 
ment of  a  superior  court,  affirming  a  judgment  of  the  police  court, 
adjudging  a  defendant  guilty  of  a  misdemeanor,  and  imposing  a  fine 
of  fifty  dollars,  it  not  being  "a  criminal  case  prosecuted  by  indict- 
ment or  information  in  a  court  of  record."  (People  v.  Meiggs'  Wharf 
Co.,  65  Cal.  99,  3  Pac.  491.) 

Under  the  former  Constitution  the  jurisdiction  of  the  supreme  court 
in  criminal  cases  on  defendant's  appeal  was  not  to  be  determined 
by  the  offense  charged,  but  by  the  offense  of  which  the  defendant  was 
convicted.     (People  v.  Apgar,  35  Cal.  389.) 

The  "information"  referred  to  is  that  named  in  section  8,  article 
I,  of  the  Constitution.  (Larue  v.  Davies,  8  Cal.  App.  750,  97  Pac. 
903.) 

A  proceeding  to  remove  an  officer  summarily  for  misdemeanor  in 
office  by  accusation,  not  being  presented  by  indictment  or  information, 
is  not  within  the  appellate  jurisdiction  of  the  supreme  court  or  the 
court  of  appeals.  (Larue  v.  Davies,  8  Cal.  App.  750,  97  Pac.  903, 
arguendo.) 

When  there  is  ample  evidence  to  support  the  verdict  in  a  criminal 
case,  the  appellate  court  has  no  jurisdiction  to  disturb  it.  (People 
V.  Meyers,  5  Cal.  App.  674,  91  Pac.  167.) 

The  propriety  of  a  conviction  becomes  a  question  of  law  only  when 
there  is  a  clear  failure  of  proof.  (People  v.  Caulfield,  7  Cal.  App. 
656,  95  Pac.  666.) 

The  supreme  court  has  no  jurisdiction  of  an  appeal  from  a  judg- 
ment of  the  superior  court  affirming  a  judgment  of  the  police  court 
imposing  a  fine  for  the  violation  of  a  city  ordinance.  (People  v.  Pa- 
cific Gas  &  Electric  Co.,  168  Cal.  496,  143  Pac.  727.) 


309  JUDICIAL   DEPARTMENT.  Art.  VI,  §  4 

The  appellate  courts  cannot  review  questions  of  fact  in  criminal 
cases  unless  they  have  developed  a  character  which  converts  them 
into  ques'tions  of  law.  (People  v.  Liehtenstein,  22  Cal.  App.  592,  135 
Pac.  692.) 

From  this  provision  it  follows  that,  unless  the  evidence  upon  which 
a  verdict  in  a  criminal  case  has  been  planted  is,  upon  its  face,  in- 
credible, or^is  inherently  improbable,  and  it  is  in  all  other  respects 
sufficient  to  support  the  verdict,  a  reversal  of  the  judgment  or  an 
order  refusing  a  new  trial  upon  the  ground  that  the  evidence  does 
not  support  the  verdict  is  not  allowable.  (People  v.  Bonzani,  24  Cal. 
App.  549,  141  Pac.  1062.) 

The  district  court  of  appeals  has  jurisdiction  of  an  appeal  by  the 
people  from  an  order  made  before  judgment  setting  aside  an  informa- 
tion charging  the  crime  of  murder.  (People  v.  White,  161  Cal.  310, 
119  Pac.  79.) 

Probate. — The  supreme  court  has  jurisdiction  of  only  such  appeals 
in  probate  matters  as  are  provided  by  law.  (Estate  of  Walkerly,  94 
Cal.  352,  29  Pac.  719;  Estate  of  Ohm,  82  Cal.  160,  22  Pac.  927;  Estate 
of  Moore,  86  Cal.  58,  24  Pac.  816;  Estate  of  Winslow,  128  Cal.  311, 
60  Pac.  931;  Estate  of  Wittmeier,  118  Cal.  255,  50  Pac.  393;  Estate  of 
Cahill,  142  Cal.  628,  76  Pac.  383.) 

An  order  compelling  an  administratrix  to  allow  her  name  to  be  used 
by  a  creditor  of  the  estate  is  a  probate  matter  within  the  meaning  of 
this  section,  and,  not  being  one  in  which  an  appeal  is  provided  by 
law,  no  appeal  lies.     (Estate  of  Ohm,  82  Cal.  160,  22  Pac.  927.) 

Divorce. — An  action  for  divorce  is  a  case  in  equity  within  the 
meaning  of  this  section.  (Sharon  v.  Sharon,  67  Cal.  185,  7  Pac.  456, 
635,  8  Pac.  709;  Cassidy  v.  Sullivan,  64  Cal.  266,  28  Pae.  234;  Stewart 
V.  Torrance,  9  Cal.  App.  209,  98  Pac.  396.) 

The  supreme  court  has  jurisdiction  of  an  appeal  in  an  action  for 
divorce.     (Conant  v.  Conant,  10  Cal.  249,  70  Am.  Dec.  717.) 

Iiiens. — Under  the  former  Constitution,  prior  to  the  amendments  of 
1862,  the  supreme  court  had  no  jurisdiction  of  an  action  to  foreclose 
a  mortgage  or  mechanic's  lien  when  the  amount  involved  did  not 
exceed  two  hundred  dollars.  (Poland  v.  Carrigan,  20  Cal.  174.) 
Otherwise,  since  those  amendments.  (Willis  v.  Farley,  24  Cal.  490, 
499.) 

An  action  to  foreclose  a  mechanic's  lien  or  to  reach  the  fund  in 
the  hands  of  the  owner,  being  an  equitable  action,  is  within  the  ap- 
pellate jurisdiction  of  the  supreme  court.  (Weldon  v.  Superior  Court, 
138  Cal.  427,  71  Pac.  502.) 

Writs. — The  language  of  the  present  Constitution  giving  the  su- 
preme court  power  to  "issue  writs  of  mandamus,  certiorari,  prohibi- 
tion, and  habeas  corpus,  and  all  other  writs  necessary  or  proper  to 
the  complete  exercise  of  the  appellate  jurisdiction,"  has  the  same 
meaning  as  the  language  in  the  former  Constitution  giving  it  power 
to  "issue  writs  of  mandamus,  certiorari,  prohibition,  habeas  corpus, 
and  also  all  writs  necessary  or  proper  to  the  complete  exercise  of  its 
appellate  jurisdiction."  Thus  construed,  the  section  gives  the  court 
original  jurisdiction  to  issue  the  writs  specially  named.  (Hyatt  v. 
Allen,  54  Cal.  353.) 


Art.  VI,  §  4 


CONSTITUTION    OP    1879. 


310 


The  writ  of  prohibition  mentioned  in  this  section  is  the  writ  of 
prohibition  as  known  to  the  common  law,  and  its  office  is  to  restrain 
subordinate  courts  and  inferior  judicial  tribunals  from  exceeding  their 
jurisdiction.     (Maurer  v.  Mitchell,  53  Cal.  289.) 

Courts  which  may  issue  prohibition.     See  note,  111  Am.  St.  Eep. 
932. 

The  legislature  cannot  enlarge  or  extend  the  office  of  the  writs 
mentioned  in  this  section.  (Camron  v.  Kenfield,  57  Cal.  350;  Farmers' 
Union  v.  Thresher,  62  Cal.  407;  Hobart  v.  Tillson,  66  Cal.  210,  5  Pac. 
83.) 

In  issuing  writs  of  mandamus  or  other  prerogative  writs,  the  su- 
preme court  and  the  several  superior  courts  are  peers — each  having 
original  jurisdiction;  and  a  determination  thereon  by  a  superior  court 
is  conclusive  upon  the  supreme  court,  except  on  appeal.  (Santa 
Cruz  etc.  Stock  Co.  v.  Board  of  Suprs.  of  Santa  Clara  Co.,  62  Cal.  40.) 

The  supreme  court  will  not  entertain  an  application  for  a  writ  of 
mandamus,  or  other  prerogative  writ,  where  the  petition  shows  no 
sufficient  reason  why  the  application  was  not  made  to  the  superior 
court.     (Menzies  v.  Board  of  Equalization,  62  Cal.  179.) 

The  supreme  court  has  appellate  jurisdiction  in  cases  of  mandamus. 
(Palache  v.  Hunt,  64  Cal.  473,  2  Pac.  245.) 

The  supreme  court  has  appellate  jurisdiction  in  a  proceeding  in  the 
nature  of  a  quo  warranto.  (People  v.  Perry,  79  Cal.  105,  21  Pac. 
423.) 

The  supreme  court  may  exercise  its  appellate  jurisdiction  by  means 
of  the  writs  mentioned  in  this  section.  (People  v.  Turner,  1  Cal.  143, 
52  Am.  Dec.  295.) 

Mandamus  is  the  proper  remedy  to  compel  the  district  court  to 
restore  an  attorney  whose  name  has  been  stricken  from  the  rolls  by 
the  order  of  such  court.  (People  v.  Turner,  1  Cal.  143,  52  Am.  Dec. 
295.) 

Prior  to  the  amendment  of  1862,  the  supreme  court  could  issue  writs 
of  certiorari,  etc.,  only  in  aid  of  its  appellate  jurisdiction.  (Miliken 
V.  Huber,  21  Cal.  166;  Ex  parte  Attorney  General,  1  Cal.  85.) 

Under  the  amendment  of  1862,  the  supreme  court  had  jurisdiction 
to  issue  writs  of  mandamus,  etc.,  without  reference  to  its  appellate 
jurisdiction.  (Tyler  v.  Houghton,  25  Cal.  26;  Miller  v.  Board  of  Su- 
pervisors, 25  Cal.  93.) 

The  district  courts  had  jurisdiction  to  issue  writs  of  mandate  re- 
gardless of  the  amount  involved.     (Cariaga  v.  Dryden,  30  Cal.  244.) 

The  jurisdiction  of  the  supreme  court  in  cases  of  certiorari  does  not 
depend  upon  the  amount  in  controversy.  (Winter  v.  Fitzpatrick,  35 
Cal.  269.) 

The  writ  of  certiorari  can  be  rightfully  issued  only  upon  an  order 
of  the  court,  made  upon  application  for  that  purpose,  and  not  upon  an 
ordeV  of  the  justices  of  the  court  as  such,  or  any  of  them.  (Smith 
V.  Oakland,  40  Cal.  481.) 

A  mandamus  proceeding  involving  the  validity  of  the  organization 
of  a  protection  district  and  a  tax  thereof  is  within  the  jurisdiction  of 
the  supreme  court.     (Keech  v.  Joplin,  9  Cal.  App.  217,  101  Pac.  417.) 

When  mandamus  is  sought  in  aid  of  the  exercise  of  appellate  juris- 
diction, as  to  compel  the  settlement  of  a  bill  of  exceptions,  the  appli- 


311  JUDICIAL   DEPARTMENT.  Art.  VI,  §  4 

cation  must  be  addressed  to  the  court  having  appellate  jurisdiction  of 
the  cause.     (Stewart  v.  Torrance,  9  Cal.  App.  209,  98  Pac.  396.) 

The  Constitution  does  not  confine  the  jurisdiction  of  district  courts 
to  issue  writs  of  mandamus  within  their  respective  districts,  but,  as 
a  matter  of  comity,  such  writs  should  be  invariably  applied  for  to  the 
court  of  the  district  in  which  the  cause  for  the  writ  arises,  unless 
there  are  shown  special  circumstances  which  justify  the  issuance  of 
the  writ  by  the  court  of  another  district.  (Older  v.  Superior  Court, 
10  Cal.  App.  564,  102  Pac.  829.) 

It  is  a  sufficient  ground  for  presenting  a  petition  for  writ  of  man- 
date to  the  district  court  of  a  district  outside  of  which  the  cause 
for  the  writ  arose  that  it  would  be  impracticable  to  present  it  to  the 
other  court  on  account  of  loss  of  time.  (Older  v.  Superior  Court,  10 
Cal.  App.  564,  102  Pac.  829.) 

Power  of  district  court  of  appeals  to  issue  writs  in  cases  appealable 
to  district  court  of  appeals  of  another  district  discussed  but  not  de- 
cided.    (Older  V.  Superior  Court,  157  Cal.  770,  109  Pac.  478.) 

After  judgment  on  appeal  in  a  habeas  corpus  case  there  can  be  no 
rehearing  of  the  case.  (Matter  of  Application  of  Shoemaker,  25  Cal. 
App.  551,  144  Pac.  985.) 

Sections  22  and  23  of  article  XII,  as  amended  in  1911,  enlarged  the 
scope  of  the  writ  of  certiorari,  in  proceedings  before  the  supreme 
court  to  review  orders  and  decisions  of  the  railroad  commission,  be- 
yond all  former  constitutional  or  statutory  definitions,  so  that  it  now 
includes  a  determination  of  whether  an  order  or  decision  of  the  com- 
mission violates  any  right  of  a  party  under  the  state  or  federal  Con- 
stitution. (Pacific  Tel.  etc.  Co.  v.  Eshleman,  166  Cal.  640,  Ann.  Cas. 
1915C,  822,  50  L.  R.  A.  (N.  S.)  652,  137  Pac.  1119.) 

Where,  on  a  proceeding  in  certiorari  in  the  superior  court  to  obtain 
a  review  and  an  annulment  of  a  judgment  and  orders  subsequent 
thereto  in  a  justice's  court,  an  adverse  judgment  or  order  of  dismissal 
is  entered,  an  appeal  may  be  taken  to  the  district  court  of  appeal. 
(Cohen  v.  Melrose,  167  Cal.  792,  141  Pac.  374.) 

A  stay  of  execution  is  not  "necessary  or  proper  to  the  complete 
exercise  of  its  appellate  jurisdiction"  when  such  stay  can  be  granted 
only  at  the  risk  of  destroying  rights  which  will  unquestionably  be- 
long to  the  respondent  if  the  judgment  of  the  lower  court  shall  be 
affirmed.  (Hulbert  v.  California  etc.  Cement  Co.,  161  Cal.  239,  38 
L.  R.  A.  (N.  S.)  436,  118  Pac.  928,  concurring  opinion  by  Sloss,  J.) 
Original  jurisdiction  of  state  court  of  last  resort  to  issue  writ  of 
habeas  corpus,  see  note,  Ann.  Cas.  1913A,  156. 

Miscellaneous. — The  supreme  court  has  no  jurisdiction  of  an  appeal 
from  a  judgment  in  a  proceeding  under  section  772  of  the  Penal  Code, 
for  the  removal  of  public  officers.  (In  re  Curtis,  108  Cal.  661,  41  Pac. 
793;  Wheeler  v.  Donnell,  110  Cal.  655,  43  Pac.  1.) 

The  supreme  court  has  appellate  jurisdiction  of  an  appeal  in  a  civil 
proceeding  to  remove  an  officer.  (Morton  v.  Broderick,  118  Cal.  474, 
50  Pac.  644.) 

The  supreme  court  has  no  original  jurisdiction  to  try  the  title  to 
an  office.     (People  v.  Harvey,  62  Cal.  508.) 

The  supreme  coi;*^'  has  appellate  jurisdiction  of  an  eleetiou  contest. 
(Lord  v.  Dunstcr,  79  Cal.  477,  21  Pac.  863.) 


Art.  VI,  §  4 


CONSTITUTION    OF    1879. 


312 


The  supreme  court  has  no  jurisdiction  to  naturalize  aliens.  (Ex 
parte   Knowles,  5   Cal.  300.) 

The  supreme  court  has  no  jurisdiction  of  an  appeal  from  a  judgment 
of  the  district  court  upon  appeal  from  the  court  of  sessions.  (Webb 
V.  Hanson,  3  Cal.  65.) 

FAILURE  TO  AGREE. — When  the  judges  of  the  district  court  of 
appeal  fail  to  agree  upon  an  application  for  a  writ  of  mandate  it  is 
deemed  denied.     (Ex  parte  Sauer,  3  Cal.  App.  237,  84  Pac.  995.) 

The  individual  views  expressed  by  one  of  the  justices  of  a  district 
court  of  appeal  in  an  opinion  rendered  upon  a  reversal  of  a  judgment 
in  which  the  other  justices  fail  to  concur  do  not  become  the  law  of 
the  case  on  a  subsequent  trial,  or  on  a  second  appeal.  (Matter  of 
Coburn,  165  Cal.  202,  131  Pac.  352.) 

PRESIDING  JUSTICE.— The  functions  conferred  on  the  chief  jus- 
tice by  section  1174  of  the  Penal  Code  are  to  be  performed  by  the 
presiding  justices  of  the  district  courts  of  appeal,  in  eases  in  which 
appeals  must  be  taken  to  such  courts.  (People  v.  Lapique,  154  Cal. 
518,  98  Pac.  257.) 

REMITTITUR. — The  remittitur  is  the  judgment  of  the  appellate 
tribunal  which  is  authenticated  to  the  court  from  which  the  appeal 
is  taken  or  over  which  its  controlling  influence  is  exercised,  and  ap- 
plies to  all  judgm.ents,  whether  rendered  in  the  exercise  of  appellate 
or  original  jurisdiction.     (Noel  v.  Smith,  2  Cal.  App.  158,  83  Pac.  167.) 

Under  rule  34  of  the  supreme  court  a  judgment  of  the  district  court 
of  appeal  does  not  become  conclusive  until  the  remittitur  is  issued 
thereon.     (Noel  v.  Smith,  2  Cal.  App.  158,  83  Pac.  167.) 

APPEAL  TO  WRONG  COURT.— Where  an  appeal  is  erroneously 
taken  to  the  court  of  appeal  instead  of  the  supreme  court,  the  case 
will  be  transferred  to  the  latter  court.  (Marston  v.  Kuhland,  2  Cal. 
App.  316,  84  Pac.  357;  Hiner  v.  Hiner,  5  Cal.  App.  546,  90  Pac.  957; 
Eickey  Land  etc.  Co.  v.  Glader,  6  Cal.  App.  113,  91  Pac.  414;  Barnes 
v.  Daveck,  7  Cal.  App.  220,  94  Pac.  779;  Stockton  L.  Co.  v.  Schuler, 
7  Cal.  App.  257,  94  Pac.  399;  Randall  v.  Freed,  7  Cal.  App.  553,  94 
Pac.  1056;  Wright  v.  Sonoma,  7  Cal.  App.  567,  96  Pac.  333;  Aetna 
Indemnity  Co.  v.  Altadena  Mining  etc.  Co.,  11  Cal.  App.  26,  104  Pac. 
470;  Pacific  Paving  Co.  v.  Verso,  11  Cal.  App.  383,  105  Pac.  136;  Ris- 
don  V.  Prewett,  8  Cal.  App.  434,  97  Pac.  73;  Litch  v.  O'Connor,  8  Cal. 
App.  489,  97  Pac.  207;  Keech  v.  Joplin,  9  Cal.  App.  217,  101  Pac. 
417.) 

When  an  appeal  is  taken  to  the  supreme  court,  but  the  undertaking 
recites  an  appeal  to  the  district  court  of  appeal,  it  is  ineffectual.  (Mc- 
Aulay  V.  Tahoe  Ice  Co.,  3  Cal.  App.  642,  86  Pac.  912.) 

When  an  appeal  is  properly  taken  to  the  supreme  court,  but  the 
transcript  and  briefs  are  entitled  in  the  district  court  of  appeal,  the 
latter  court  will  not  dismiss  the  appeal,  but  will  order  the  record 
transmitted  to  the  supreme  court.  (Davey  v.  Mulroy,  7  Cal.  App. 
1,  93  Pac.  297.) 

An  appeal  bond  erroneously  reciting  that  the  appeal  was  about  to 
be  taken  to  the  supreme  court  instead  of  the  court  of  appeal  may  be 
cured  by  a  new  bond.  (Pacific  Paving  Co.  v.  Verso,  11  Cal.  App. 
383,  105  Pac.  136.) 


813  JUDICIAL   DEPARTMENT.  Art.  VI,  §  4^ 

Harmless  errors  to  be  disreg"arded. 

Sec.  4I/2.  No  judgment  shall  be  set  aside,  or  new  trial 
granted,  in  any  ease,  on  the  ground  of  misdirection  of  the 
jury,  or  of  the  improper  admission  or  rejection  of  evidence, 
or  for  any  error  as  to  any  matter  of  pleading,  or  for 
any  error  as  to  any  matter  of  procedure,  unless,  after 
an  examination  of  the  entire  cause,  including  the  evidence, 
the  court  shall  be  of  the  opinion  that  the  error  complained 
of  has  resulted  in  a  miscarriage  of  justice.  (Amendment 
adopted  November  3,  1914.) 

[ORIGINAL  SECTION.] 
Sec.  4%.  No  judgment  shall  be  set  aside,  or  new  trial  granted 
in  any  criminal  case  on  the  ground  of  misdirection  of  the  jury  or 
the  improper  admission  or  rejection  of  evidence,  or  for  error  as  to 
any  matter  of  pleading  or  procedure,  unless,  after  an  examination 
of  the  entire  cause  including  the  evidence,  the  court  shall  be  of 
the  opinion  that  the  error  complained  of  has  resulted  in  a  miscar- 
riage of  justice.     (Amendment  approved  October  10,  1911.) 

HABMIiESS  EERORS.— This  section  abrogates  the  old  rule  that 
prejudice  is  presumed  from  any  error  of  law,  and  that  where  error  is 
shown  it  is  the  duty  of  the  court  to  exam.ine  the  evidence  and  ascer- 
tain whether  the  error  did  or  did  not  in  fact  work  any  injury.  This 
section  does  not  repeal  or  abrogate  the  constitutional  guaranties,  ac- 
corded accused  persons,  but  every  invasion  of  even  a  constitutional 
right  does  not  necessarily  require  a  reversal.  This  section  is  ap- 
plicable to  offenses  committed  prior  to  its  adoption  and  is  not  ob- 
noxious to  the  provision  of  the  federal  Conetitution  against  ex  post 
facto  laws.     (People  v.  O'Bryan,  165  Cal.  55,  130  Pac.  1042.) 

This  section  cannot  sustain  a  conviction  of  a  criminal  offense,  where 
there  was  no  proof  made  of  one  of  the  essential  elements  of  such  of- 
fense.    (People  v.  Fre.v,  IGo  Cal.  140,  131  Pac.  127.) 

This  section  makes  it  the  duty  of  any  appellate  court,  in  consider- 
ing the  questions  of  law  presented  on  an  appeal  in  a  criminal  case, 
to  consider  the  entire  cause  including  the  evidence  for  the  purpose  of 
determining  whether  any  error  or  erroneous  procedure  complained 
of  has  resulted  in  a  miscarriage  of  justice,  and  if  the  court  is  of  the 
opinion  that  such  has  been  the  effect,  it  must  reverse  the  judgment. 
(People  v.  Fleming,  166  Cal.  357,  Ann.  Cas.  1915B,  881,  136  Pac.  291.) 

"Miscarriage  of  justice"  can  only  mean  the  conviction  of  a  person 
who  is  probably  innocent.  (People  v.  Fleming,  166  Cal.  357,  Ann. 
Cas.  1915B,  881,  136  Pac.  291.  qualified  concurrence  by  Beatty,  C.  J.) 

Under  this  section  substantial  injury  as  well  as  error  must  be  made 
affirmatively  to  appear  for  the  setting  aside  of  a  judgment.  (People 
v.  Merritt,  18  Cal.  App.  58,  122  Pac.  839.) 

This  section  was  not  intended  to  change,  nor  did  it  change  the  rule 
that,  in  the  exercise  of  their  appellate  jurisdiction,  the  appellate 
courts  are  restricted  to  the   consideration   of   questions  of  law  alone, 


Art.  VI,  §  41/^  CONSTITUTION  OF   1879. 


314 


and  a  subject  of  review  by  those  tribunals,  except  where  there  neces- 
sarily arises  from  the  evidence  or  is  presented  thereby,  from  its  very 
nature,  a  question  of  law.  (People  v.  Haydon,  18  Cal.  App.  543,  123 
Pae.  1102,  1114.) 

This  section  is  not  confined  to  the  review  of  cases  in  appellate 
courts,  but  was  intended  to  apply  as  well  to  trial  courts,  in  the  review 
of  records  in  criminal  cases,  on  motions  for  new  trial,  and  where  the 
trial  court  sets  aside  a  verdict  or  grants  a  new  trial  in  contravention 
of  this  section,  its  action  will  be  nullified  upon  appeal.  (People  v. 
Tonisky,  20  Cal.  App.  672,  130  Pac.  184.) 

Where  the  action  of  the  trial  court  is  up  for  review,  the  question 
whether  the  opinion  of  the  trial  court  that  the  error  complained  of 
has  or  has  not  resulted  in  a  "miscarriage  of  justice"  presents  a  ques- 
tion of  law  to  be  determined  from  a  review  of  the  record.  (People 
V.  Tomsky,  20  Cal.  App.  672,  130  Pac.  184.) 

Eeviewing  courts  are  not  permitted,  even  where  matters  prejudicial 
in  their  character  appear  in  the  record,  to  reverse  such  judgment, 
unless  from  the  entire  record  it  appears  that  there  has  been  a  miscar- 
riage of  justice.     (People  v.  Kizer,  22  Cal.  App.  10,  133  Pac.  516,  521.) 

"Miscarriage  of  justice"  is  applicable  to  cases  where  the  acquittal 
or  conviction  has  resulted  from  some  form  of  trial  in  which  the  essen- 
tial rights  of  the  people  or  of  the  defendant  were  disregarded  or 
denied.     (People  v.  Wilson,  23  Cal.  App.  513,  138  Pac.  971.) 

Since  the  adoption  of  this  section,  under  which  a  defendant  is  with- 
out remedy,  against  errors  of  the  trial  court,  on  appeal,  unless  the  ap- 
pellate court  can  say  upon  the  entire  evidence  that  the  errors  resulted 
in  a  miscarriage  of  justice,  a  greater  and  larger  responsibility  rests 
upon  the  trial  judge  in  seeing  that  a  defendant  is  accorded  every 
right  to  which  he  is  entitled.  (People  v,  Svendsen,  25  Cal,  App,  1, 
142  Pac,  861.) 

Under  this  provision  it  is  not  sufficient  to  warrant  a  reversal  to 
show  that  error  was  committed,  but,  after  a  review  of  the  whole 
record,  the  error  must  be  disregarded  and  the  judgment  affirmed  un- 
less the  appellate  court  is  of  the  opinion  that  the  error  resulted  in  a 
miscarriage  of  justice.  (People  v.  Bartol,  24  Cal.  App.  659,  142  Pac. 
510.) 

This  provision  was  not  designed  to  repeal  or  abrogate  the  guaran- 
ties accorded  persons  accused  of  crime  by  other  parts  of  the  Consti- 
tution or  to  overthrow  all  statutory  rules  of  procedure  and  evidence 
in  criminal  cases.  (People  v.  Ho  Kim  You,  24  Cal.  App.  451,  141  Pac, 
950,) 

Where  the  appellate  court  is  unable  to  determine  whether  a  de- 
fendant would  or  would  not  have  been  convicted  by  the  jury  had 
erroneously  admitted  testimony  been  withdrawn  from  their  considera- 
tion, this  section  cannot  be  applied  to  uphold  a  judgment.  (People 
V.  MacPhee,  26  Cal.  App.  218,  146  Pac.  522.) 

Under  this  section  it  is  the  duty  of  the  appellate  court  to  review 
conflicting  evidence  for  the  purpose  of  ascertaining  whether  or  not 
an  error  "has  resulted  in  a  miscarriage  of  justice,"  and  injury  is 
no  longer  presumed  from  error  but  must  be  affirmatively  shown. 
(Vallejo  etc,  E.  E.  Co.  v.  Eeed  Orchard  Co.,  169  Cal.  545,  147  Pac. 
238.) 


315  JUDICIAL   DEPARTMENT.  Art.  VI,  §  5 

This  section  applies  to  pending  appeals,  although  they  may  have 
been  submitted  prior  to  its  adoption.  (Vallejo  etc.  R.  R.  Co.  v.  Beed 
Orchard  Co.,  169  Cal.  545,  147  Pac.  238.) 

Superior  court,  jurisdiction. 

Sec.  5.  The  superior  court  shall  have  original  jurisdic- 
tion in  all  cases  in  equity,  and  in  all  cases  at  law  which  in- 
volve the  title  or  possession  of  real  property,  or  the  legality 
of  any  tax,  impost,  assessment,  toll,  or  municipal  fine,  and 
in  all  other  cases  in  which  the  demand,  exclusive  of  interest 
or  the  value  of  the  property  in  controversy  amounts  to  three 
hundred  dollars,  and  in  all  criminal  cases  amounting  to 
felony,  and  cases  of  misdemeanor  not  otherwise  provided 
for;  of  actions  of  forcible  entry  and  detainer;  of  proceed- 
ings in  insolvency;  of  actions  to  prevent  or  abate  a  nui- 
sance ;  of  all  matters  of  probate ;  of  divorce  and  for 
annulment  of  marriage ;  and  of  all  such  special  cases  and 
proceedings  as  are  not  otherAvise  provided  for,  and  said 
courts  shall  have  the  power  of  naturalization,  and  to  issue 
papers  therefor.  They  shall  have  appellate  jurisdiction  in 
such  cases  arising  in  inferior  courts  in  their  respective  coun- 
ties as  may  be  prescribed  by  law.  They  shall  be  always 
open  (legal  holidays  and  nonjudicial  days  excepted),  and 
their  process  shall  extend  to  all  parts  of  the  state ;  provided, 
that  all  actions  for  the  recovery  of  the  possession  of,  quiet- 
ing the  title  to,  or  for  the  enforcement  of  liens  upon  real 
estate,  shall  be  commenced  in  the  county  in  which  the  real 
estate,  or  any  part  thereof,  affected  by  such  action  or 
actions,  is  situated.  Said  courts,  and  their  judges,  shall 
have  power  to  issue  writs  of  mandamus,  certiorari,  prohi- 
bition, quo  warranto,  and  habeas  corpus,  on  petition  by  or 
on  behalf  of  any  person  in  actual  custody,  in  their  respec- 
tive counties.  Injunctions  and  writs  of  prohibition  may  be 
issued  and  served  on  legal  holidays  and  nonjudicial  days. 
(Amendment  approved  October  10,  1911.) 

[ORIGINAL  SECTION.] 
See.  5.  The  superior  court  shall  have  original  jurisdiction  in  all 
cases  in  equity,  and  in  all  cases  at  law  which  involve  the  title  or 
possession  of  real  property,  or  the  legality  of  any  tax,  impost, 
assessment,  toll,  or  municipal  fine,  and  in  all  other  cases  in  which 
the  demand,  exclusive  of  interest  or  the  value  of  the  property  in 


Art.  VI,  §  5 


CONSTITUTION    OF    1879. 


816 


controversy,  amounts  to  three  hunclrecl  dollars,  and  in  all  criminal 
cases  amounting  to  felony,  and  cases  of  misdemeanor  not  other- 
wise provided  for;  of  actions  of  forcible  entry  and  detainer;  of 
proceedings  in  insolvency;  of  actions  to  prevent  or  abate  a  nui- 
sance; of  all  matters  of  probate;  of  divorce  and  for  annulment  of 
marriage,  and  of  all  such  special  cases  and  proceedings  as  are  not 
otherwise  provided  for.  And  said  court  shall  have  the  power  of 
naturalization,  and  to  issue  papers  therefor.  They  shall  have  ap- 
pellate jurisdiction  in  such  cases  arising  in  justices'  and  other 
inferior  courts  in  their  respective  counties  as  may  be  prescribed 
by  law.  They  shall  be  always  open  (legal  holidays  and  nonjudi- 
cial days  excepted),  and  their  process  shall  extend  to  all  parts  of 
the  state;  provided,  that  all  actions  for  the  recovery  of  the  posses- 
sion of,  quieting  the  title  to,  or  for  the  enforcement  of  liens  upon 
real  estate,  shall  be  commenced  in  the  county  in  which  the  real 
estate,  or  any  part  thereof  affected  by  such  action  or  actions,  is 
situated.  Said  courts,  and  their  judges,  shall  have  power  to  issue 
writs  of  mandamus,  certiorari,  prohibition,  quo  warranto,  and 
habeas  corpus,  on  petition  by  or  on  behalf  of  any  person  in  actual 
custody  in  their  respective  counties.  Injunctions  and  writs  of  pro- 
hibition may  be  issued  and  served  on  legal  holidays  and  nonjudi- 
cial days. 

JURISDICTION  OF  SUPERIOR  COURT  —  In  general.  — The  su- 
perior court  is  a  court  of  general  jurisdiction.  (Bishop  v,  Superior 
Court,  87  Cal.  226,  25  Pac.  435;  Campe  v.  Lassen,  67  Cal.  139,  7  Pac. 
430.) 

Its  jurisdiction  is  conferred  by  the  Constitution,  and  cannot  be 
taken  away  by  the  legislature.  (Tulare  v.  Hevren,  126  Cal.  226,  58 
Pac.   530.) 

The  superior  courts  are  state  courts.  (Pratt  v.  Browne,  135  Cal. 
649,  67  Pac.  1082.) 

There  is  only  one  superior  court  in  each  county.  (Carter  v.  Lothian, 
133  Cal.  451,  65  Pac.  962.) 

This  section  was  intended  to  be  prospective  only  in  its  operation, 
and  does  not  apply  to  actions  pending  when  the  Constitution  went 
into  effect.  (Gurnee  v.  Superior  Court,  58  Cal.  88;  Watt  v.  Wright, 
66  Cal.  202,  5  Pac.  91.) 

This  section  does  not  prohibit  the  legislature  from  allowing  judicial 
business  to  be  transacted  on  a  legal  holiday  or  nonjudicial  day, 
(People  v.  Soto,  65  Cal.  621,  4  Pac.  664.) 

The  fact  that  the  Constitution  gives  the  superior  court  jurisdiction 
in  cases  of  equity  does  not  prevent  the  legislature  from  regulating 
the  practice  of  proceedings  in  such  cases.  (Wright  v.  Superior  Court, 
139  Cal.  469,  73  Pac.  145.) 

A  superior  court  is  always  in  session.  (County  of  San  Luis  Obispo 
V.  Limas,  1  Cal.  App.  175,  81  Pac.  972.) 

As  to  jurisdiction  in  general,  see  note  to  last  section, 

HOLIDAYS. — There  is  an  apparent  conflict  between  this  provision 
and  section  134  of  the  Civil  Code  so  far  as  holidays  are  concerned. 
(People  v.  Heaeock,  10  Cal.  App.  450,  102  Pac.  543.) 


317  JUDICIAL   DEPARTMENT,  Art.  VI,  §  5 

As  to  whether  Saturday  afternoon  is  a  legal  holiday  so  far  as  judi- 
cial business  is  concerned,  see  People  v.  Heacock,  10  Cal.  App.  450, 
102  Pae.  543. 

This  section  does  not  forbid  the  legislature  from  permitting  the 
transaction  of  business  on  legal  holidays.  (People  v.  Heacock,  10  Cal. 
App.  450,  102  Pac.  543.) 

By  this  section  it  was  never  intended  to  prohibit  all  business  in 
the  superior  courts  on  a  legal  holiday  or  nonjudicial  day,  except  the 
issuance  of  injunctions  and  writs  of  prohibition,  and  the  legislature 
is  at  liberty  to  allow  or  disallow  the  transaction  of  all  or  any  class 
of  judicial  business  on  legal  holidays.  (Matter  of  Smith,  152  Cal. 
566,  93  Pac.  191;  Diepenbrock  v.  Superior  Court,  153  Cal.  597,  95  Pac. 
1121.) 

Power  of  court  to  sit  and  try  cases  on  legal  holiday  other  than 
Sunday.     See  notes,  5  Ann.  Cas.  919;  11  Ann.  Cas.  559. 

Cases  at  law. — The  ad  damnum  clause  of  the  complaint  determines 
the  jurisdiction  of  the  superior  court.  (Dashiell  v.  Slingerland,  60 
Cal.  653;  Jackson  v.  Whartenby,  5  Cal.  94;  Maxfield  v.  .Johnson,  30 
Cal.  545;  Greenbaum  v.  Martinez,  86  Cal.  459,  25  Pac.  12;  Bailey  v. 
Sloan,  65  Cal.  387,  4  Pac.  349;  Derby  v.  Stevens,  64  Cal.  287,  30  Pac. 
820;  Rodley  v.  Curry,  120  Cal.  541,  52  Pac.  999;  Tulare  v.  Hevren,  126 
Cal.  226,  58  Pac.  530.) 

The  "demand"  spoken  of  in  this  section  is  a  demand  for  judgment 
evidenced  by  the  prayer  of  the  complaint,  and  a  statement  of  facts 
which  can  uphold  the  judgment  prayed  for.  (Derby  v.  Stevens,  64 
Cal.  287,  30  Pac.  820,  arguendo.) 

It  is  the  demand  and  not  the  finding  of  value  which  fixes  the  juris- 
diction of  the  court.  (Pratt  v.  Welcome,  6  Cal.  App.  475,  92  Pac. 
500.) 

The  jurisdiction  of  the  court  is  not  affected  by  the  fact  that  the 
plaintiff  does  not  succeed  in  establishing  all  that  he  claims.  (Becker 
v.  Superior  Court,  151  Cal.  313,  90  Pac.  689.) 

The  jurisdiction  depends  upon  the  amount  demanded  in  good  faith 
in  the  complaint.     (Jackson  v.  Whartenby,  5  Cal.  94,  arguendo.) 

In  an  action  for  conversion,  where  the  value  of  the  property  sued 
for  and  the  money  expended  in  pursuit  of  it  exceed  three  hundred 
dollars,  the  superior  court  has  jurisdiction,  although,  separately  con- 
sidered, neither  of  them  is  equal  to  that  sum.  (Greenbaum  v.  Mar- 
tinez, 86  Cal.  459,  25  Pac.  12.) 

The  superior  court  has  no  jurisdiction  of  a  counterclaim,  under  sub- 
division 2  of  section  438  of  the  Code  of  Civil  Procedure,  for  less  than 
three  hundred  dollars,  where  it  is  not  pleaded  as  a  defense,  but 
merely  as  a  ground  for  affirmative  relief.  (Griswold  v.  Picratt,  110 
Cal.  259,  42  Pac.  820.) 

A  counterclaim  for  less  than  three  hundred  dollars  may  be  pleaded 
in  an  action  in  the  superior  court  by  way  of  defense,  but  no  affirma- 
tive judgment  can  be  rendered  thereon.  (Freeman  v.  Seitz,  126  Cal. 
291,  58  Pac.  690.) 

An  action  for  less  than  the  constitutional  amount  does  not  confer 
jurisdiction.     (Page  v.  Ellis,  9  Cal.  248.) 


Art.  VI,  §  5 


CONSTITUTION    OF    1879. 


318 


But  where  the  amount  sued  for  exceeds  the  jurisdictional  amount, 
the  court  has  jurisdiction,  although  the  amount  recovered  is  less  than 
that  sum.  (Solomon  v.  Keese,  34  Cal.  28;  Pennybecker  v.  McDougal, 
48  Cal.  160.) 

Where  several  plaintiffs  sue  together  on  several  distinct  claims  each 
for  less  than  three  hundred  dollars,  and  the  court  enters  a  joint  judg- 
ment for  the  entire  amount  of  the  claims,  the  judgment  is  void. 
(Winrod  v.  Wolters,  141  Cal.  399,  74  Pac.  1037.) 

Costs  are  to  be  excluded  in  determining  the  jurisdictional  amount. 
(Bradley  v.  Kent,  22   Cai.  169.) 

The  interest  due  is  also  to  be  excluded.  (Arnold  v.  Van  Brunt,  4 
Cal.  89.) 

This  rule  applies  to  compound  as  well  as  to  simple  interest.  (Chris- 
tian V.  Superior  Court,  122  Cal.  117,  54  Pac.  518.) 

But  a  penalty  of  fifty  per  cent  on  the  amount  of  principal  and  in- 
terest due  on  a  promissory  note,  provided  for  in  the  note  in  case  of  a 
suit  thereon,  is  to  be  included  in  determining  the  jurisdictional 
amount.     (Reed  v.  Bernal,  40  Cal.  628.) 

Also  an  attorney's  fee  provided  for  in  a  note.  (De  Jarnatt  v.  Mar- 
quez,  132  Cal.  700,  64  Pac.  1090.) 

An  action  to  recover  funds  in  the  hands  of  a  receiver  is  an  action 
at  law.     (Garniss  v.  Superior  Court,  88  Cal.  413,  26  Pac.  351.) 

The  superior  court  has  jurisdiction  of  an  action  to  recover  money, 
although  the  amount  claimed  in  each  count  is  less  than  three  hundred 
dollars,  when  the  aggregate  amount  sued  for  exceeds  that  sum. 
(Bailey  v.  Sloan,  65  Cal.  387,  4  Pac.  349;  Ventura  County  v.  Clay,  114 
Cal.  242,  46  Pac.  9.) 

The  superior  court  has  jurisdiction  to  enjoin  an  action  in  the  jus- 
tice's court  for  the  price  of  goods  sold,  when  the  defendant  has  a 
counterclaim  for  breach  of  warranty  of  the  goods  in  excess  of  the 
jurisdiction  of  the  justice's  court,  and  has  brought  an  action  for  dam- 
ages in  the  superior  court.  (Gregory  v.  Diggs,  113  Cal.  196,  45  Pac. 
261.) 

The  superior  court  has  no  jurisdiction  of  an  action  to  recover  from 
one  or  more  stockholders  their  several  shares  of  a  debt  of  a  corpora- 
tion, where  the  amount  demanded  from  each  is  less  than  three  hun- 
dred dollars,  although  the  entire  amount  exceeds  that  sum.  (Derby  v. 
Stevens,  64  Cal.  287,  30  Pac.  820;  Hyman  v.  Coleman,  82  Cal.  650,  16 
Am.  St.  Eep.  178,  23  Pac.  62.) 

The  superior  court  has'  no  jurisdiction  of  an  action  upon  separate 
and  distinct  promises  of  several  defendants,  contained  in  one  instru- 
ment, to  pay  respectively  sums  less  than  three  hundred  dollars. 
(Thomas  v.  Anderson,  58  Cal.  99.) 

An  action  to  recover  unpaid  taxes  is  not  a  case  in  equity,  but  an 
action  at  law;  and  where  the  amount  is  less  than  three  hundred  dol- 
lars, the  court  has  no  jurisdiction;  but  an  action  to  foreclose  a  lien 
for  taxes  is  a  ease  in  equity,  of  which  the  superior  court  has  jurisdic- 
tion regardless  of  the  amount.  (People  v.  Mier,  24  Cal.  61;  Bell  v. 
Crippen,  28  Cal.  327;  People  v.  Olivera,  43  Cal.  492.) 

An  action  for  less  than  the  constitutional  amount  does  not  confer 
jurisdiction.     (Dungan  v.  Clark,  159  Cal.  30,  112  Pac.  718.) 


319  JUDICIAL   DEPARTMENT.  Art.  VI,  §  5 

The  original  jurisdiction  of  the  superior  court  and  the  appellate 
jurisdiction  of  the  district  courts  of  appeal  are  identical  in  "all  cases 
at  law,  in  which  the  demand,  exclusive  of  interest,  or  the  value 
of  the  property  in  controversy,  amounts  to  three  hundred  dollars." 
(J.  Dewing  Co."  v.  Thompson,  19  Cal.  App.  85,  124  Pac.  1035.) 

Cases  in  equity. — The  legislature  cannot  take  away  the  equity  juris- 
diction conferred  by  the  Constitution.  (Rosenberg  v.  Frank,  58  Cal. 
387.) 

But  the  constitutional  grant  of  jurisdiction  in  all  cases  in  equity 
was  not  intended  as  a  limitation  upon  the  power  of  the  legislature 
to  regulate  the  rights  of  persons;  and  the  legislature  may  create  new 
rights  under  which  new  cases  in  equity  may  arise,  or  cause  some 
rights  to  cease  to  exist,  so  that  certain  cases  which  courts  of  equity 
once  entertained  can  no  longer  arise.  (Spreckels  v.  Hawaiian  Com. 
etc.  Co.,  117  Cal.  377,  49  Pac.  353.) 

The  grant  of  jurisdiction  in  all  cases  in  equity  confers  the  same 
jurisdiction  as  that  formerly  exercised  by  a  court  of  chancery.  (San- 
ford  V.  Head,  5  Cal.  297.) 

The  superior  court  has  jurisdiction  of  an  action  for  an  accounting 
between  mortgagor  and  mortgagee,  although  the  property  is  out  of 
the  state.  (Peninsular  etc.  Co.  v.  Pacific  etc.  Co.,  123  Cal.  689,  56 
Pac.  604.) 

Where  an  action  in  equity  involves  matters  of  probate  jurisdiction, 
but  no  objection  to  the  mode  of  exercising  the  jurisdiction  is  made  in 
the  trial  court,  it  will  be  treated  upon  appeal  as  within  the  equity 
jurisdiction.  (Simons  v.  Bedell,  122  Cal.  341,  68  Am,  St.  Rep.  35,  55 
Pac.  3.) 

An  action  against  a  county  for  less  than  three  hundred  dollars, 
claimed  as  compensation  for  services  rendered  by  the  plaintiff  as  a 
member  of  the  county  board  of  education,  is  not  a  suit  in  equity,  and 
the  superior  court  has  no  jurisdiction  of  it.  (Wright  v.  Del  Norte 
County,  115  Cal.  464,  47  Pac.  258.) 

The  same  superior  court  has  jurisdiction  both  in  equity  and  in 
matters  of  probate;  and  in  an  action  in  equity  for  an  accounting 
against  the  executor  of  a  deceased  administrator,  it  may  administer 
full  and  entire  relief  according  to  the  principles  of  equity,  and  also 
in  accordance  with  the  statutes  with  reference  to  matters  of  probate. 
(Pennie  v.  Roach,  94  Cal.  515,  29  Pac.  956,  30  Pac.  106.) 

A  court  of  equity  has  jurisdiction  of  an  action  to  recover  property 
intentionally  and  fraudulently  concealed  by  a  guardian  from  the  court 
and  the  ward.  (Lataillade  v.  Orena,  91  Cal.  565,  25  Am.  St.  Rep.  219, 
27  Pac.  924.) 

The  superior  court  cannot  enjoin  the  execution  of  a  mandate  of  the 
supreme  court.  (Quan  Wo  Chung  v,  Laumeister,  83  Cal.  384,  17  Am. 
St.  Rep.  261,  23  Pac.  320.) 

An  action  to  annul  an  ordinance  of  the  board  of  supervisors  fixing 
water  rates  is  within  the  equitable  jurisdiction  of  the  superior  court. 
(Spring  Valley  W.  W.  v.  San  Francisco,  82  Cal.  286,  16  Am.  St.  Rep. 
116,  6  L.  R.  A.  756,  22  Pac.  910,  1046.) 

The  superior  court,  as  a  court  of  equity,  has  power  in  proper  cases 
to  hear  and  determine  questions  relating  to  the  rights  and  duties  of 


Art.  VI,  §  5 


CONSTITUTION    OF    1879. 


320 


executors  and  beneficiaries  under  wills  which  have  been  admitted  to 
probate.     (Williams  v.  Williams,  73  Cal.  99,  14  Pac.  394.) 

The  superior  court  has  jurisdiction  of  a  suit  in  equity  against  the 
administrator  of  a  deceased  person  for  the  specific  performance  of  a 
contract  for  the  sale  and  purchase  of  lands.  (Hall  v.  Rice,  64  Cal. 
443,  1  Pae.  891,  2  Pac.  889.) 

The  superior  courts  are  vested  with  the  same  chancery  jurisdiction 
which  was  vested  in  the  high  courts  of  chancery  in  England,  and  the 
equity  power  is  not  curtailed  by  the  code  provisions  regulating  in- 
junctions. (Pasadena  v.  Superior  Court,  157  Cal.  781,  21  Ann.  Gas. 
1355,  109  Pac.  620.) 

The  superior  court  in  an  action  brought  in  good  faith  to  foreclose 
an  asserted  mechanic's  lien  has  jurisdiction  upon  finding  against  the 
claim  of  lien  to  render  a  personal  judgment.  (Becker  v.  Superior 
Court,  151  Cal.  313,  90  Pac.  689.) 

An  action  to  foreclose  a  mechanic's  lien  is  a  suit  in  equity.  (Becker 
T.  Superior  Court,  151  Cal.  313,  90  Pac.  689.) 

The  legislature  cannot  take  away  the  equity  jurisdiction  conferred 
on  the  courts  by  the  Constitution.  (Bacon  v.  Bacon,  150  Cal.  477,  89 
Pac.  317.) 

The  superior  court  has  power  to  compel  a  discovery  in  all  eases  in 
which,  under  the  established  rules  of  chancery  practice  existing  at 
the  time  of  the  adoption  of  the  Constitution,  a  party  would  have  been 
entitled  to  this  relief.  (Union  etc.  Co.  v.  Superior  Court,  149  Cal.  790, 
87  Pac.  1035.) 

The  district  courts  had  power  to  appoint  receivers  in  "cases  where 
receivers  had  theretofore  been  appointed  by  the  usages  of  the  courts 
of  equity."  (Bateman  v.  Superior  Court,  54  Cal.  285;  La  Societe 
Francaise  v.  District  Court,  53  Cal.  495.) 

In  this  state,  the  jurisdiction  of  courts  of  equity  over  questions  of 
title  to  real  estate  has  no  existence.     (Eitchie  v.  Borland,  6  Cal.  33.) 

Under  the  general  grant  of  jurisdiction  in  all  cases  in  equity,  the 
court  may  issue  writs  of  mandamus,  certiorari,  prohibition  and  habeas 
corpus.     (Perry  v.  Ames,  26  Cal.  372.) 

An  action  to  abate  a  nuisance  is  a  case  in  equity.  (People  v. 
Moore,  29  Cal.  427;  Courtwright  v.  Bear  Eiver  etc.  Co.,  30  Cal.  573; 
Yolo  County  v.  Sacramento,  36  Cal.  193.) 

In  Rosenberg  v.  Frank,  58  Cal.  387,  it  was  held  that  the  corre- 
sponding section  of  the  Constitution  of  1849  conferred  upon  the  dis- 
trict courts  the  same  jurisdiction  in  equity  as  that  administered  by 
the  high  court  of  chancery  in  England,  including  the  power  to  con- 
strue a  will  after  it  has  been  admitted  to  probate.  But,  under  the 
present  Constitution,  it  is  held  that  the  power  to  construe  a  will  is 
vested  exclusively  in  the  superior  court  sitting  as  a  court  of  probate. 
(Toland  V.  Earl,  129  Cal.  148,  79  Am.  St.  Rep.  100,  61  Pac.  914.) 

Conceding  that  the  superior  court  has  jurisdiction  of  an  action  to 
construe  a  will,  it  is  not  bound  to  entertain  such  an  action,  and  should 
not  do  so,  except  in  case  where  there  is  some  special  reason  for  seek- 
ing its  interpretation.  (Siddall  v.  Harrison,  73  Cal.  560,  15  Pac. 
130.) 

Under  the  former  Constitution  it  was  held  that  an  action  in  equity 
to  compel  an  administrator  to  account  would  lie,  although  his  account 


321  JUDICIAL   DEPARTMENT.  Art.  VI,  §  5 

had  been  settled  by  the  probate  court.  (Clarke  v.  Perry,  5  Cal.  58,  63 
Am.  Dec.  82.) 

Probate. — Prior  to  the  organization  of  the  state,  there  was  no  such 
a  thing  as  the  probate  of  a  will;  and  the  probate  court  has  no  juris- 
diction to  probate  a  will  executed  prior  to  that  time  by  the  death  of 
the  testator.  (Grimes  v.  Norris,  6  Cal.  621,  65  Am.  Dec.  545;  Cop- 
pinger  v.  Rice,  33  Cal.  408;  Castro  v.  Castro,  6  Cal.  158.) 

The  courts  of  first  instance,  between  the  acquisition  of  California 
by  the  United  States  and  the  passage  of  the  probate  act,  had  jurisdic- 
tion in  matters  of  probate.     (Ryder  v.  Cohn,  37  Cal.  69.) 

The  estates  of  deceased  persons  in  this  state,  who  died  prior  to  the 
passage  of  the  Probate  Act  of  1850,  and  subsequent  to  the  organiza- 
tion of  the  state,  can  be  administered  on  in  accordance  with  the 
probate  act.     (People  v.  Senter,  28  Cal.  502.) 

The  probate  court  is  a  court  of  limited  and  inferior  jurisdiction. 
(Grimes  v.  Norris,  6  Cal.  621,  65  Am.  Dec.  545;  Clarke  v.  Perry,  5 
Cal.  58,  63  Am.  Dec.  82;  Smith  v.  Andrews,  6  Cal.  652;  Smith  v.  Wes- 
terfield,  88  Cal.  374,  26  Pae.  206.) 

No  distinct  "court  of  probate"  has  been  created  or  recognized  by 
the  Constitution.     (In  re  Burton,  93  Cal.  459,  29  Pac.  36.) 

The  superior  court,  when  sitting  as  a  court  of  probate,  has  power  to 
hear  and  determine  all  questions  of  law  and  fact,  the  determination 
of  which  is  ancillary  to  a  proper  judgment  in  such  case.  (In  re  Bur- 
ton, 93  Cal.  459,  29  Pac.  36.) 

The  jurisdiction  of  the  superior  court  over  probate  matters  is  con- 
ferred by  the  Constitution,  and  it  is  not  a  statutory  tribunal  when 
sitting  in  probate.  (Heydenfeldt  v.  Superior  Court,  117  Cal.  348,  49 
Pac.  210.) 

The  probate  court  has  exclusive  jurisdiction  of  legacies.  (Drink- 
house  V.  Merritt,  134  Cal.  580,  66  Pac.  785.) 

The  probate  court  has  no  jurisdiction  to  settle  a  disputed  claim  by 
a  third  person  against  the  guardian  or  the  estate  of  a  ward.  (Guard- 
iajiship  of  Breslin,  135  Cal.  21,  66  Pac.  962.) 

A  court  of  equity  cannot  set  aside  a  decree  of  distribution  made  by 
the  probate  court  on  the  ground  of  fraud  of  the  person  securing  it; 
but  in  case  of  extrinsic  fraud  it  may  declare  such  person  a  trustee  of 
the  defrauded  parties.  (Sohler  v.  Sohler,  135  Cal.  323,  87  Am.  St. 
Rep.  98,  67  Pac.  282.) 

Questions  in  regard  to  assignments  made  by  an  heir  apparent  are 
not  within  the  scope  of  probate  proceedings.  (Estate  of  Ryder,  141 
Cal.  366,  74  Pac.  993.) 

The  superior  court  sitting  as  a  court  of  probate  has  no  jurisdiction 
to  annul  an  administration  and  compel  the  administrator  to  return  all 
the  property  which  has  come  into  his  hands,  on  the  ground  that  the 
administration  was  granted  on  the  estate  of  a  living  person.  (Costa 
v.  Superior  Court,  137  Cal.  79,  69  Pac.  840.) 

The  determination  of  a  judgment  lien  against  a  devisee  is  not  a 
matter  of  probate.  (Martinovich  v.  Marsicano,  137  Cal.  354,  70  Pac. 
459.) 

When  a  title  by  patent  from  the  United  States  vested  absolutely  in 
the  widow  and  two  children  of  the  deceased  husband  and  father,  free 
Constitution — 21 


Art.  VI,  §  5  CONSTITUTION  OP  1879.  322 

of  any  trust  attaching  to  his  estate,  the  superior  court  sitting  ;n  pro- 
bate has  no  jurisdiction  over  it.  (Southern  Cal.  M.  T.  Co.  v.  Lincoln 
University,  137  Cal.  508,  70  Pac.  1129.) 

The  former  Constitution  did  not  confer  on  the  probate  court  juris- 
diction of  all  matters  relating  to  the  estates  of  deceased  persons,  but 
of  such  matters  only  as  the  statutes  direct  it  to  exercise  jurisdiction 
over.     (Bush  v.  Lindsey,  44  Cal.  121.) 

Probate  courts  have  no  jurisdiction  to  enforce  a  trust  by  compelling 
an  administrator  to  convey  property  by  him  held  in  trust.  (Haver- 
stick  V.  Trudel,  51  Cal.  431.) 

The  probate  court  has  no  jurisdiction  to  compel  an  attorney  of  an 
executrix  to  return  a  fee  paid  him  by  her.  (Tomsky  v.  Superior 
Court,  131  Cal.  620,  63  Pac.  1020.) 

The  probate  courts  had  not  exclusive  jurisdiction  in  cases  of  guard- 
ianship of  minors.     (Wilson  v.  Eoach,  4  Cal.  362.) 

The  district  courts  had  the  same  control  over  the  persons  of  minors, 
as  well  as  their  estates,  that  the  court  of  chancery  in  England  pos- 
sesses.    (Wilson  v.  Eoach,  4  Cal.  362.) 

Neither  the  probate  court,  nor  the  superior  court  when  exercising 
probate  jurisdiction,  has  power  to  set  aside  a  decree  of  distribution 
on  the  ground  of  fraud,  after  the  time  mentioned  in  section  473  of 
the  Code  of  Civil  Procedure.     (Estate  of  Hudson,  63  Cal.  454.) 

The  jurisdiction  of  the  probate  courts  over  the  estates  of  deceased 
persons  did  not  divest  the  district  courts  of  their  general  jurisdic- 
tion as  courts  of  chancery  over  actions  for  a  settlement  of  the  affairs 
of  a  partnership.     (Griggs  v.  Clark,  23  Cal.  427.) 

Where  the  executors  named  in  the  will  are  also  appointed  trustees 
to  control  and  manage  the  residue  of  the  estate  and  to  distribute  it 
among  certain  beneficiaries,  a  court  of  equity  has  no  jurisdiction  of 
a  bill  to  enforce  an  accounting  of  the  trust  estate,  pending  adminis- 
tration of  the  estate  in  the  probate  court.  (Dougherty  v.  Bartlett, 
100  Cal.  496,  35  Pac.  431.) 

The  probate  court  cannot  decide  an  adverse  claim  to  property  asked 
to  be  set  aside  as  a  homestead.  (Estate  of  Kimberly,  97  Cal.  281,  32 
Pac.  234.) 

The  superior  court  sitting  as  a  court  of  probate  may  examine  into 
the  title  to  parcels  of  real  estate,  for  the  purpose  of  selecting  a  home- 
stead, but  has  no  jurisdiction  to  determine  the  title  as  between 
adverse  claimants.     (Estate  of  Burton,  64  Cal.  428,  1  Pac.  702.) 

In  probate  proceedings  the  court  has  jurisdiction  of  the  claims  of 
assignees  of  the  heir,  but  its  jurisdiction  does  not  extend  to  claims 
of  an  equitable  nature  against  the  legal  owner,  or,  in  other  words, 
to  trusts.     (More  v.  More,  133  Cal.  489,  65  Pac.  1044.) 

The  probate  court  has  no  jurisdiction  to  settle  the  accounts  of  a 
deceased  guardian.     (In  re  Allgier,  65  Cal.  228,  3  Pac.  849.) 

The  probate  court  has  no  jurisdiction  to  determine  whether  or  not 
certain  property  in  the  possession  of  the  executor  belongs  to  the  estate 
or  is  hold  by  him  in  some  other  capacity.  (In  re  Haas,  97  Cal.  232, 
31  Pac.  893,^32  Pac.  327.) 

Sections  1458  to  1461  of  the  Code  of  Civil  Procedure  do  not  provide 
for  a  proceeding  involving  title  to  property  of  which  the  probate  court 


323  JUDICIAL   DEPARTMENT.  Art.  VI,  §  5 

has  no  jurisdiction.  (Levy  v.  Superior  Court,  105  Cal.  600,  29  L.  R.  A, 
811,  38  Pac.  965.) 

Where  property  is  devised,  exonerated  of  the  mortgage  thereon,  the 
probate  court  has  jurisdiction  to  compel  the  executor  to  pay  the  mort- 
gage debt  from  the  assets  of  the  estate.  (In  re  Heydenfeldt,  106 
Cal.  434,  39  Pac.  7SS.) 

The  probate  court  has  inherent  power  to  order  the  distributee  to 
return  to  the  executors  the  property  distributed,  when  the  decree  of 
distribution  is  reversed  upon  appeal.  (Heydenfeldt  v.  Superior  Court, 
117  Cal.  348,  49  Pac.  210.) 

Under  the  former  Constitution  it  was  held  that  the  jurisdiction  of 
the  probate  court  over  testamentary  and  probate  matters  was  not  ex- 
clusive. The  district  court  might  take  jurisdiction  of  the  settlement 
of  an  estate  when  there  were  peculiar  circumstances  of  embarrass- 
ment, and  when  the  assuming  jurisdiction  would  prevent  waste,  delay 
and  expense,  and  thus  conclude,  by  one  action  and  decree,  a  pro- 
tracted litigation.     (Deck  v.  Gerke,  12  Cal.  433,  73  Am.  Dec.  555.) 

The  probate  court  has  exclusive  jurisdiction  of  the  following  mat- 
ters: Matters  relating  to  the  proof  of  wills  (Castro  v.  Richardson,  18 
Cal.  478);  probate  of  wills,  granting  of  letters,  allowance  of  claims, 
settlement  of  accounts  (In  re  Bowen,  34  Cal.  682);  to  adjust  and  en- 
force a  claim  for  expenses  of  administration  (Gurnee  v.  Maloney,  38 
Cal.  85,  99  Am.  Dec.  352);  to  compel  an  executor  to  account,  and  to 
distribute  the  estate  (Auguisola  v.  Arnaz,  51  Cal.  435) ;  to  construe  a 
will  (Toland  v.  Earl,  129  Cal.  148,  79  Am.  St.  Rep.  100,  61  Pac.  914); 
to  determine  who  is  entitled  to  distribution  (Simons  v.  Bedell,  122 
Cal.  341,  68  Am.  St.  Rep.  35,  55  Pac.  3);  to  determine  whether  an 
attorney  for  absent  or  minor  heirs  shall  be  appointed,  and  to  fix  the 
amount  of  his  compensation.  (Dougherty  v.  Bartlett,  100  Cal.  496, 
35  Pac.  431.) 

The  superior  court,  when  sitting  as  a  court  of  probate,  has  exclusive 
jurisdiction  of  the  distribution  of  an  estate,  and  is  not  bound  by  an 
adjudication  by  the  same  court,  when  sitting  as  a  court  of  equity,  as 
to  the  interest  of  an  heir  or  devisee,  where  such  interest  was  merely 
incidentally  involved.     (Estate  of  Freud,  134  Cal.  333,  66  Pac.  476.) 

An  action  will  not  lie  to  recover  from  an  executrix  rents  received 
by  her  after  the  settlement  of  her  account,  although  she  neglected  to 
account  for  the  same.  (Washington  v.  Black,  83  Cal.  290,  23  Pac. 
300.) 

A  court  of  equity  has  no  power  to  establish  a  will,  even  though  tho 
will  has  been  lost  or  destroyed,  or  has  been  fraudulently  suppressed, 
and  the  relief  is  asked  against  a  person  who  destroyed  the  will  and 
is  one  of  the  witnesses  necessary  to  prove  its  contents.  (McDaniel 
v.  Pattison,  98  Cal.  86,  27  Pac.  651,  32  Pac.  805.) 

In  an  action  of  ejectment,  the  superior  court  has  no  power  to  set 
aside  the  land  sought  to  be  recovered  as  a  homestead.  This  can 
only  be  done  by  the  superior  court  sitting  as  a  court  of  probate. 
(Richards  v.  Wetmore,  66  Cal.  365,  5  Pac.  620.) 

Under  the  former  Constitution,  the  district  courts  had  power  to 
decide  issues  of  fact  joined  in  the  probate  court  and  certified  to  the 
district   courts.     This    provision,    however,   did   not    give    such    courts 


Art.  VI,  §  5 


CONSTITUTION    OF    1879. 


324 


any  appellate  jurisdiction  from  the  probate  courts.  (Eeed  v.  McCor- 
mick,  4  Cal.  342.) 

An  act  providing  for  the  transfer  to  the  district  courts  of  issues  of 
fact  already  decided  by  the  probate  court  is  void  as  conferring  appel- 
late jurisdiction  upon  the  district  courts,  which  under  the  Constitu- 
tion they  cannot  exercise.     (Deck  v.  Gerke,  6  Cal.  666.) 

After  the  amendment  in  1862,  district  courts  had  no  jurisdiction  to 
try  issues  arising  in  the  probate  courts.  (In  re  Bowen,  34  Cal.  682; 
Matter  of  Tomlinson,  35  Cal.  509.) 

The  probate  court  was  not  bound  by  a  decision  by  the  district  court 
as  to  a  fact  certified  to  that  court  for  decision.  (Pond  v.  Pond,  10 
Cal.  495.) 

•  The  probate  court  had  jurisdiction  to  try  and  determine  issues  of 
fact  arising  in  proceedings  before  it,  and  was  only  required  to  certify 
the  issue  to  the  district  court  when  the  evidence  was  conflicting,  etc. 
(Keller  v.  Franklin,  5  Cal.  432.) 

The  supreme  court  sitting  in  probate  has  exclusive  jurisdiction  of 
accounts  of  executors  and  administrators.  (Elizalde  v.  Murphy,  4 
Cal.  App.  114,  87  Pac.  245.) 

The  superior  court  sitting  in  probate  has  exclusive  jurisdiction  on 
allowance  of  administrator's  fees,  expenses  and  attorney's  fees, 
whether  claimed  by  the  administrator  or  the  representatives  of  a 
deceased  administrator.  (Elizalde  v.  Murphy,  4  Cal.  App.  114,  87 
Pac.  245.) 

The  superior  court  sitting  in  probate  has  such  equitable  jurisdiction 
as  may  be  necessary  to  the  exercise  of  its  proper  functions.  (Elizalde 
V.  Murphy,  4  Cal.  App.  114,  87  Pac.  245.) 

Under  the  former  Constitution  the  probate  court  had  such  jurisdic- 
tion only  as  was  conferred  upon  it  by  the  legislature,  while  under  the 
present  Constitution  the  superior  court  has  jurisdiction  "of  all  mat- 
ters of  probate."     (Elizalde  v.  Murphy,  4  Cal.  App.  114,  87  Pac.  245.) 

Section  1639  of  the  Code  of  Civil  Procedure  properly  granted  juris- 
diction to  a  superior  court  sitting  in  probate  to  compel  the  personal 
representatives  of  a  deceased  executor  or  administrator  to  render  an 
account  of  the  administration  of  their  testator  or  intestate,  and  to 
settle  such  account  as  in  other  cases.  (King  v.  Chase,  159  Cal.  420, 
115  Pac.  207.) 

Divorce. — In  a  suit  for  divorce  and  a  partition  of  the  property  ac- 
quired during  coverture,  the  jurisdiction  of  the  court  does  not  depend 
upon  the  amount  involved.     (Deuprez  v.  Deuprez,  5  Cal.  387.) 

The  grant  of  jurisdiction  in  actions  of  divorce  does  not  prevent  the 
legislature  from  making  reasonable  regulations  as  to  the  proceedings 
by  which  such  jurisdiction  is  exercised,  or  from  taking  away  the 
right  of  divorce  entirely.  (Grannis  v.  Superior  Court,  146  Cal.  245, 
106  Am.  St.  Rep.  23,  79  Pac.  891.) 

Insolvency. — The  act  creating  the  bank  commissioners  did  not  de- 
prive the  superior  court  of  its  power  to  hear  and  determine  matters 
of  insolvency.      (People  v.  Superior  Court,  100  Cal.  105,  34  Pac.  492.) 

The  legislature  may  pass  an  insolvency  law  while  a  United  States 
bankruptcy  law  is  in  force,  but  its  operation  will  be  suspended  until 
the  repeal  of  the  federal  law.     (Lewis  v.  County  Clerk,  55  Cal.  604; 


325  JUDICIAL    DEPARTMENT,  Art.  VI,  §  5 

Seattle  Coal  etc.  Co.  v.  Thomas,  57  Cal.  197 j  Boedefeld  v.  Eeed,  55 
Cal.  299.) 

Since  the  new  Constitution  proceedings  in  insolvency  are  no  longer 
epecial  cases.     (People  v.   Rosborough,  29  Cal.  415.) 

The  mere  fact  that  jurisdiction  in  cases  of  insolvency  is  vested  in 
the  court  does  not  prevent  the  legislature  from  authorizing  the  judge 
to  make  an  order  in  chambers  directing  the  clerk  to  give  notice  to 
creditors.     (Flint  v.  Wilson,  36  Cal.  24.) 

Tax,  etc. — The  term  "assessment"  as  used  in  this  section  does  not 
include  assessments  made  by  a  private  corporation  upon  its  stock- 
holders, but  refers  to  such  assessments  as  are  authorized  in  relation 
to  revenue  and  taxation,  and  such  as  may  be  made  under  the  author- 
ity of  a  municipal  or  other  corporation  to  meet  the  cost  of  a  public 
improvement.  (Arroyo  Ditch  etc.  Co.  v.  Superior  Court,  92  Cal.  47,  27 
Am.  St.  Eep.  91,  28  Pac.  54.) 

A  forfeiture  for  issuing  a  certificate  of  relief  in  violation  of  section 
596  of  the  Political  Code  is  not  a  municipal  fine,  or  a  tax,  impost,  toll 
or  assessment.     (Thomas  v.  Justice's  Court,  80  Cal.  40,  22  Pac.  80.) 

An  action  against  an  assessor  to  recover  damages  for  a  wrongful 
and  fraudulent  assessment  made  by  him  does  not  involve  "the  legality 
of  a  tax."     (Perkins  v.  Ealls,  71  Cal.  87,  11  Pac.  860.) 

A  proceeding  to  modify  the  grade  of  a  street  is  a  special  one,  and 
not  a  case  at  law  involving  the  legality  of  an  assessment.  (Appeal 
of  Houghton,  42  Cal.  35.) 

A  license  fee  or  charge  for  the  transaction  of  any  business  is  a  tax. 
(Santa  Barbara  v.  Stearns,  51  Cal.  499.) 

An  action  to  recover  a  sum  exacted  by  a  toll  gatherer,  greater  than 
he  is  permitted  by  law  to  collect,  does  not  involve  the  legality  of  a 
toll.     (Brown  v.  Rice,  52  Cal.  489.) 

Special  proceedings. — The  county  courts  only  had  jurisdiction  in 
such  special  cases  as  the  legislature  should  determine.  (Matter  of 
Marks,  45  Cal.  199.) 

A  grant  of  jurisdiction  in  such  special  cases  as  the  legislature  may 
prescribe  does  not  confer  exclusive  jurisdiction  in  special  cases. 
(O'Callaghan  v.  Booth,  6  Cal.  63;  Harper  v.  Freelon,  6  Cal.  76.) 

As  to  whether  the  legislature  may  confer  jurisdiction  of  special 
cases  upon  courts  not  established  by  the  Constitution,  see  Spencer 
Creek  Water  Co.  v.  Vallejo,  48  Cal.  70. 

The  legislature  cannot  confer  jurisdiction  in  "special  cases"  upon  a 
judge.     (Spencer  Creek  Water  Co.  v.  Vallejo,  48  Cal.  70.) 

Special  cases  are  cases  created  by  statute  and  the  proceedings 
under  which  are  unknown  to  the  general  framework  of  the  courts  of 
common  law  and  equity.  (Parsons  v.  Tuolumne  Co.  Water  Co.,  5  Cal. 
43,  63  Am.  Dec.  76;  People  v.  Day,  15  Cal.  91;  People  v.  Supervisors 
of  Kern  Co.,  45  Cal.  679.) 

An  action  to  prevent  or  abate  a  nuisance  is  not  a  special  case. 
(Parsons  v.  Tuolumne  Co.  Water  Co.,  5  Cal.  43,  63  Am.  Dee.  76.) 

Writs  of  mandate  are  not  special  cases.  (People  v.  Supervisors  of 
Kern  Co.,  45  Cal.  679.) 

The  incorporation  of  towns  is  not  a  special  case.  (People  v. 
Nevada,  6  Cal.  143.) 


Art.  VI,  §  5  CONSTITUTION  OF  1879.  326 

The  following  matters  are  special  cases  within  the  meaning  of  the 
Constitution:  Cases  of  insolvency  (Harper  v.  Freelon,  6  Cal.  76); 
election  contests  (Dorsey  v.  Barry,  24  Cal.  449;  Saunders  v.  Haynes, 
13  Cal.  145) ;  the  examination  of  claims  for  public  lands  (Eicks  v. 
Keed,  19  Cal.  551);  proceedings  to  enforce  mechanics'  liens  (McNiel 
V.  Borland,  23  Cal.  144,  distinguishing  Brock  v.  Bruce,  5  Cal.  279); 
proceedings  for  the  condemnation  of  water  (Spencer  Creek  Water 
Co.  V.  Vallejo,  48  Cal.  70);  proceedings  under  sections  312  and  315 
of  the  Civil  Code  (Wickersham  v.  Brittan,  93  Cal.  34,  15  L.  R.  A.  106, 
28  Pac.  792,  29  Pac.  51);  proceedings  to  condemn  land  (Bishop  v. 
Superior  Court,  87  Cal.  226,  25  Pac.  435). 

Section  4  of  the  act  of  1897  for  the  formation  of  irrigation  districts 
(Stats.  1897,  p.  254),  providing  for  an  appeal  directly  to  the  superior 
court  of  the  county  from  an  order  of  the  board  of  supervisors  grant- 
ing an  application  for  the  formation  of  a  district,  is  unconstitutional 
and  void.  The  legislature  has  no  power  to  extend  the  jurisdiction, 
original  or  appellate,  of  the  superior  court.  (Chinn  v.  Superior  Court, 
156  Cal.  478,  105  Pac.  580.) 

The  unconstitutionality  of  section  4  of  the  act  of  March  31,  1897, 
does  not  render  the  entire  act  void.  (Imperial  Water  Co.  v.  Board 
of  Supervisors,  162  Cal.  14,  120  Pac.  780.) 

Keal  property. — The  idea  intended  to  be  embodied  in  the  phrase, 
"cases  at  law  which  involve  the  title  or  possession  of  real  property," 
may  be  expressed  by  the  paraphrase:  Cases  at  law  in  which  the  title 
or  possession  of  real  property  is  a  material  fact  in  the  case,  upon 
which  the  plaintiff  relies  for  a  recovery  or  the  defendant  for  a  de- 
fense. (Holman  v.  Taylor,  31  Cal.  338;  Copertini  v.  Oppermann,  76 
Cal.  181,  18  Pac.  256.) 

When  the  title  to  real  property  is  involved,  the  amount  sued  for  is 
not  material  in  determining  the  jurisdiction.  (Cullen  v.  Langridge, 
17  Cal.  67;  Holman  v.  Taylor,  31  Cal.  338.) 

It  is  not  enough  that  the  possession  is  a  fact  in  controversy,  or 
incidentally  in  question,  or  that  the  fact  of  possession  is  in  issue;  but 
the  right  of  possession  must  be  involved.  (Pollock  v.  Cummings,  38 
Cal.  683;  Cornett  v.  Bishop,  39  Cal.  319.) 

An  action  to  recover  one-half  of  the  value  of  a  partition  fence  in- 
volves the  title  to  real  property.     (Holman  v.  Taylor,  31  Cal.  338.) 

An  action  brought  in  a  justice's  court  against  a  railroad  company 
by  an  owner  of  adjoining  land,  to  recover  for  the  killing  of  a  colt 
alleged  to  have  strayed  upon  the  track  by  reason  of  the  insufficiency 
of  a  division  fence,  necessarily  involves  the  title  to  such  land,  al- 
though the  answer  raises  no  issue  as  to  such  ownership.  (Boyd  v. 
Southern  Cal.  Ey.  Co.,  126  Cal.  571,  58  Pac.  1046.) 

An  action  to  foreclose  a  vendor's  lien  upon  premises  contracted  to 
be  sold  is  an  action  for  the  enforcement  of  a  lien  upon  real  estate 
within  the  provisions  of  this  section.  (Southern  Pac.  R.  R.  Co.  v. 
Pixley,  103  Cal.  118,  37  Pac.  194.) 

An  action  by  a  vendee  to  a  contract  for  the  sale  of  land  to  recover 
a  part  payment  made  on  the  purchase  price,  because  of  a  defect  in 
the  title  of  the  vendor,  involves  the  title  to  real  property.  (Copertini 
v.  Oppermann,  76  Cal.  181,  18  Pac.  256.) 


327  JUDICIAL    DEPARTMENT.  Art.  VI,  §  5 

Where  an  action  involving  the  title  or  possession  of  real  property 
is  brought  in  the  justice's  court,  and  the  defendant  appeals  to  the 
superior  court,  which  renders  judgment  in  favor  of  the  plaintiff,  the 
defendant  may  appeal  to  the  supreme  court.  (Hart  v.  Carnall-Hop- 
kins  Co.,  101  Cal.  160,  35  Pac.  633;  Santa  Barbara  v.  Eldred,  95  Cal. 
378,  30  Pac.  562.) 

Where  an  action  to  recover  less  than  three  hundred  dollars  is  trans- 
ferred from  the  justice's  court  to  the  superior  court  on  the  ground 
that  it  involves  the  title  to  real  estate,  and  the  plaintiff  afterward 
amends  his  complaint  and  asks  for  damages  to  certain  lands,  the  supe- 
rior court  has  no  jurisdiction  of  the  action,  as  it  does  not  appear 
that  the  action  involves  the  title  to  real  estate.  (Gorton  v.  Ferdi- 
nando,  64  Cal.  11,  27  Pac.  941.) 

An  action  for  specific  performance  of  a  contract  for  the  sale  of  land 
is  not  an  action  for  the  recovery  of  the  possession  of  or  quieting  title 
to  real  estate.  (Grocers'  Fruit  etc.  Union  v.  Kern  etc.  Land  Co.,  150 
Cal.  466,  89  Pac.  120.) 

"Possession,"  under  this  section,  means  such  a  possession  of  real 
property  as  has  relation  to  title  or  is  necessary  to  the  enforcement 
or  defeat  of  the  cause  of  action  asserted.  (O'Meara  v.  Hables,  163 
Cal.  240,  124  Pac.  1003.) 

Where  plaintiff  founds  his  right  of  action  upon  an  allegation  that 
title  to  land  agreed  to  be  purchased  by  him  is  invalid,  and  seeks  the 
return  of  a  purchase  deposit  upon  the  ground  of  such  invalidity,  origi- 
nal jurisdiction  of  the  subject  matter  is  in  the  superior  court  and  not 
in  the  justice  court.     (Bates  v.  Ferrier,  19  Cal.  App.  79,  124  Pac.  889.) 

Where,  in  a  proceeding  under  the  McEnerney  Act  against  "all  per- 
sons," a  person  voluntarily  appears  as  defendant  and  submits  himself 
and  his  claim  to  the  jurisdiction  of  the  superior  court,  such  court  has 
jurisdiction  of  the  subject  matter  of  the  controversy  between  the 
plaintiff  and  'such  person.  (Faxon  v.  All  Persons,  166  Cal.  707,  137 
Pac.  919.) 

Place  of  trial. — The  proviso  in  this  section  is  mandatory.  (Fresno 
Nat.  Bank  v.  Superior  Court,  83  Cal.  491,  24  Pac.  157.) 

The  proviso  to  this  section  is  to  be  strictly  construed,  and  does  not 
include  an  action  to  recover  damages  for  interfering  with  an  ease- 
ment for  a  canal,  where  there  is  nothing  in  the  complaint  to  indicate 
that  the  defendant  claims  any  right  or  title  to  the  easement  of  the 
canal.  (Miller  &  Lux  v.  Kern  Co.  Land  Co.,  140'  Cal.  132,  73  Pac. 
836.) 

An  action  may  be  brought  under  the  proviso  to  this  section  to  par- 
tition several  distinct  tracts  of  land  situated  in  different  counties. 
As  to  whether  or  not  partition  is  an  action  "quieting  title  to"  real 
estate  not  decided.  (Murphy  v.  Superior  Court,  138  Cal.  69,  70  Pac. 
1070.) 

An  action  to  have  it  adjudged  that  plaintiff  is  the  owner  of  an  un- 
divided third  of  a  mining  property,  and  to  compel  a  conveyance 
thereof,  must  be  brought  in  the  county  in  which  the  mining  property 
is  located.     (McFarland  v.  Martin,  144  Cal.  771,  78  Pac.  239.) 

An  action  to  establish  a  trust  iu  land  must  be  tried  in  the  county 
where  the  land  is  situated.  (Hannah  v.  Canty,  1  Cal.  App.  225,  81 
Pac.  1035.) 


Art.  VI,  §  5  CONSTITUTION  OF  1879.  328 

Where  property  situated  in  different  counties  is  mortgaged  to  seoire 
a  debt,  the  superior  court  of  either  county  has  jurisdiction  of  a  suit 
to  foreclose.     (Kent  v.  Williams,  146  Cal.  3,  79  Vac.  527.) 

The  superior  court  has  no  jurisdiction  of  an  action  to  enforce  a 
lien  upon  real  property  situated  in  another  county.  (Urton'  v.  Wool- 
sey,  87  Cal.  38,  25  Pac.  154.) 

This  section  has  no  application  to  an  action  for  the  settlement  of 
a  trust  in  relation  to  real  and  personal  property,  and  such  an  action 
is  not  required  to  be  brought  in  the  county  where  the  real  property 
is  situated.     (Le  Breton  v.  Superior  Court,  66  Cal.  27,  4  Pac.  777.) 

If  an  action  to  quiet  title  to  real  estate  is  brought  outside  of  tho 
county  in  which  the  land  is  situated,  the  court  has  no  jurisdiction, 
and  such  lack  of  jurisdiction  cannot  be  waived.  (Fritts  v.  Camp,  94 
Cal.  393,  29  Pac.  867.) 

An  action  to  set  aside  a  judgment  procured  by  fraud  is  a  suit  in 
equity  and  need  not  be  brought  in  the  county  in  which  the  judgment 
was  recovered.     (Herd  v.  Tuohy,  133  Cal.  55,  65  Pac.  139.) 

The  creating  of  a  new  county  does  not  affect  an  action  pending  in 
the  superior  court  affecting  real  property  in  such  new  county,  (Tol- 
man  v.  Smith,  85  Cal.  280,  24  Pac.  743.) 

This  section  does  not  provide  that  the  actions  referred  to  must  be 
tried,  but  simply  that  they  must  be  commenced  in  the  county  in 
which  the  land  is  situated.     (Hancock  v.  Burton,  61  Cal.  70.) 

If  an  action  be  for  the  determination,  in  any  form,  of  a  right  or 
interest  in  real  property,  the  action  must  be  commenced  and  tried  in 
the  county  where  the  land  lies.  (Bartley  v.  Fraser,  16  Cal.  App.  560, 
117  Pac.  683.) 

Writs. — The  legislature  has  no  power  to  enlarge  the  office  of  the 
writs  mentioned  in  this  section.  (Camron  v.  Kenfield,  57  Cal.  550; 
Farmers'  etc.  Union  v.  Thresher,  62  Cal.  407.) 

The  superior  court  may  issue  a  writ  of  mandamus  to  run  out  of  the 
county,  or  to  be  executed  out  of  the  county  in  which  the  court  is  held. 
(Kings  County  v.  Johnson,  104  Cal.  198,  37  Pac.  870.) 

If  the  provisions  of  this  section  reviving  the  writ  of  quo  warranto 
repealed  by  implication  the  provisions  of  the  code  for  an  action 
against  persons  who  usurp  offices  or  franchises,  it  made  little  differ- 
ence, as  the  power  under  a  writ  of  quo  warranto  is  quite  as  broad  as 
under  the  statute.  (People  v.  Dashaway  Assn.,  84  Cal.  114,  12 
L.  R.  A.  117,  24  Pac.  277.) 

The  county  court  had  no  jurisdiction  to  issue  the  writ  of  certiorari, 
except  in  aid  of  its  appellate  jurisdiction.  (Wilcox  v.  Oakland,  49 
Cal.  29.) 

Under  the  "power  to  issue  writs  of  habeas  corpus,"  a  superior  court 
has  power  to  determine  the  legal  effect  of  a  judgment  of  conviction, 
and  although  its  judgment  holding  a  petition  for  a  writ  sufficient  and 
a  judgment  of  conviction  void  for  insufficiency  of  the  information,  be 
erroneo'us,  it  cannot  be  annulled  on  certiorari.  (Matter  of  Hughes, 
159  Cal.  360,  113  Pac.  684.) 

Criminal  cases. — The  superior  court  has  jurisdiction  of  an  offense 
punishable  by  imprisonment  and  fine,  which  may  exceed  one  thousand 
dollars.     (Ex  parte  Neustadt,  82  Cal.  273,  23  Pac.  124.) 


329  JUDICIAL   DEPARTMENT.  Art.  VI,  §  5 

Where  the  legislature  confers  upon  police  courts  jurisdictio'n  of  cer- 
tain misdemeanors,  such  jurisdiction  is  exclusive,  and  the  superior 
court  has  no  jurisdiction  of  such  misdemeanors.  (Green  v.  Superior 
Court,  78  Cal.  556,  21  Pac.  307,  541;  People  v.  Joselyn,  80  Cal.  5-44, 
22  Pac.  217;  People  v.  Lawrence,  82  Cal.  182,22  Pac.  1120;  Ex  parte 
Wallingford,  60  Cal.  103;   Gafford  v.  Bush,  60  Cal.  149.) 

If  a  defendant  is  charged  with  a  felony  of  which  the  superior  court 
has  jurisdiction,  he  may  be  convicted  of  a  lesser  offense  involved  in 
such  felony,  although  such  lesser  offense  is  not  one  of  which  the 
superior  court  is  given  jurisdiction.  (Ex  parte  Donahue,  65  Cal.  474, 
4  Pac.  449.) 

The  provision  of  the  San  Francisco  charter  giving  the  police  court 
"concurrent  jurisdiction  with  the  superior  court"  of  all  other  misde- 
meanors than  those  arising  under  the  violation  of  ordinances  is  in 
violation  of  this  section.  (Robert  v.  Police  Court,  148  Cal.  131,  82 
Pac.  838.) 

A  newly  created  county  has  jurisdiction  of  a  defendant  charged 
with  the  commission  of  an  offense  prior  to  the  creation  of  the  county, 
upon  territory  within  its  boundaries;  and  a  prosecution  pending  in 
the  old  county  is  no  bar  to  the  prosecution,  if  dismissed  before  the 
commencement  of  the  prosecution  in  the  new,  and  before  jeopardy 
has  attached.  (People  v.  Stokes,  103  Cal.  193,  42  Am.  St.  Rep.  102,  87 
Pac.  207.) 

The  superior  court  has  no  jurisdiction  of  a  misdemeanor  committed 
by  a  corporation  punishable  by  fine  not  exceeding  five  hundred  dol- 
lars or  imprisonment  not  exceeding  six  months.  (People  v.  Palermo 
Land  &  W.  Co.,  4  Cal.  App.  717,  89  Pac.  723,  725.) 

The  superior  court  only  has  jurisdiction  of  cases  of  misdemeanor 
not  otherwise  provided  for.  (People  v.  Palermo  Land  &  W.  Co.,  4 
Cal.  App.  717,  89  Pac.  723,  725.) 

The  legislature  may  repose  exclusive  jurisdiction  in  police  courts 
of  all  classes  of  misdemeanors  punishable  by  fine  or  imprisonment. 
(People  v.  Cory,  26  Cal.  App.  735,  148  Pac.  532.) 

Appellate  jurisdiction. — The  superior  court  has  appellate  jurisdic- 
tion only  to  the  extent  and  in  the  mode  which  the  legislature  may 
prescribe.     (Sherer  v.  Superior  Court,  94  Cal.  354,  29  Pac.  716.) 

The  Constitution  gives  the  superior  court  no  appellate  jurisdiction, 
but  the  legislature  is  permitted  to  give  it  such  appellate  jurisdiction 
as  it  may  see  fit.     (Wells  v.  Torrance,  119  CaL  437,  51  Pac.  626.) 

By  reason  of  the  provisions  of  section  11,  article  XXII,  of  the  Con- 
stitution, the  superior  court  had  jurisdiction  of  appeals  from  justices' 
courts  before  the  legislature  acted  upon  the  subject.  (California 
Fruit  etc.  Co.  v.  Superior  Court,  60  Cal.  305.) 

The  superior  courts  only  have  jurisdiction  of  appeals  from  justices' 
courts  in  their  respective  counties,  and  therefore,  after  an  appeal, 
the  action  cannot  be  transferred  to  another  county  for  trial,  although 
the  defendant  resides  in  another  county.  (Gross  v.  Superior  Court 
71  Cal.  382,  12  Pac.  264;  Luco  v.  Superior  Court,  71  Cal.  555,  12  Pac' 
677.) 

The  superior  court  has  no  jurisdiction  of  an  appeal  from  an  order 
of  a  justice's   court,   directing  the  judgment  debtor   to   apply   certain 


Art.  VI,  §  6 


CONSTITUTION    OF    1879. 


330 


property  in  satisfaction  of  the  judgment.  (Welb  v.  Torrance,  119 
Cal.  437,  51  Pac.  626.) 

Upon  an  appeal  from  a  judgment  of  the  justice's  court  vacating  a 
former  judgment,  the  superior  court  cannot  affirm  such  former  judg- 
ment, but,  if  it  was  erroneously  set  aside,  it  should  reverse  such 
judgment  and  order  a  new  trial.  (Sherer  v.  Superior  Court,  94  Cal. 
354,  29  Pac.  716.) 

Although  the  county  court  was  authorized  to  try  cases  on  appeal  de 
novo,  such  a  trial  was  not  an  exercise  of  original  jurisdiction.  (Town- 
send  V.  Brooks,  5  Cal.  52.) 

Where  a  case  is  appealed  tcv  the  superior  court  on  question  of  both 
law  and  fact,  the  superior  court  acquires  jurisdiction  of  the  cause, 
although  it  was  not  originally  within  the  jurisdiction  of  the  justice's 
court.  (De  Jarnatt  v.  Marqiiez,  132  Cal.  700,  64  Pac.  1090;  Hart  v. 
Carnall-Hopkins  Co.,  103  Cal.  132,  37  Pac.  196.  But  see  Ballerino  v. 
Bigelow,  90  Cal.  500,  27  Pac.  372.) 

A  judgment  on  appeal  from  a  judgment  of  a  justice's  court,  in 
which  the  amount  is  in  excess  of  the  jurisdiction  of  the  justice,  is 
not  void,  but  merely  erroneous.     (Moore  v.  Martin,  38  Cal.  428.) 

A  judgment  of  a  county  court  upon  appeal  far  the  sum  of  three 
hundred  dollars  is  void,  and  will  be  annulled  upon  certiorari.  (Will 
V.  Sinkwitz,  39  Cal.  570.) 

As  to  whether  the  provision  of  the  Constitution  of  1849  giving  the 
county  courts  appellate  jurisdiction  in  eases  arising  in  inferior  courts 
is  self -executing,  see  People  v.  Nyland,  41  Cal.  129. 

Forcible  entry  and  detainer. — The  words  "forcible  entry  and  de- 
tainer" include  not  only  forcible  entry  and  forcible  detainer,  but  also 
unlawful  detainer  after  the  termination  of  or  contrary  to  the  terms 
of  the  lease.     (Caulfield  v.  Stevens,  28  Cal.  118.) 

lilens. — The  superior  court  has  concurrent  jurisdiction  with  justices 
of  the  peace  for  the  foreclosure  of  Hens  on  personal  property  when 
the  claim  is  for  less  than  three  hundred  dollars,  and  the  plaintiff  is 
entitled  to  costs,  whether  he  seeks  relief  in  one  jurisdiction  or  the 
other.     (Clark  v.  Brown,  141  Cal.  93,  74  Pac.  548.) 

Miscellaneous. — The  county  courts  had  common-law  jurisdiction 
and  might  admit  foreigners  to  citizenship.  (In  re  Conner,  39  Cal.  98, 
2  Am.  Dec.  427.) 

Granting  to  county  judges  power  to  issue  injunctions  did  not 
trench  upon  the  jurisdiction  of  the  district  courts.  (Thompson  v. 
Williams,  6  Cal.  88.) 

An  act  providing  for  the  confirmation  of  the  organization  and 
bonds  of  irrigation  districts  is  not  unconstitutional  because  it  author- 
izes the  court  to  determine  the  rights  of  the  parties  in  advance  of 
any  contro'versy  as  to  such  rights.  (Cullen  v.  Glendora  Water  Co., 
113  Cal.  503,  39  Pac.  769,  45  Pac.  822,  1047.) 

Superior  court,  how  constituted. 

Sec.  6.  There  shall  be  in  each  of  the  organized  counties, 
or  cities  and  counties  of  the  state,  a  superior,  court,  for  each 
of  which  at  least  one  judge  shall  be  elected  by  the  qualified 


331  JUDICIAL    DEPARTMENT,  Art.  VI,  §  6 

electors  of  the  county,  or  city  and  county,  at  the  ,<^'eneral 
state  election ;  provided,  that  until  otherwise  ordered  by  the 
legislature,  only  one  judge  shall  be  elected  for  the  counties 
of  Yuba  and  Sutter,  and  that  in  the  city  and  county  of  San 
Francisco  there  shall  be  elected  twelve  judges  of  the  supe- 
rior  court,   any   one   or  more   of   whom   may   hold   court. 
There  may  be  as  many  sessions  of  said  court,  at  the  same 
time,  as  there  are  judges  thereof.     The  said  judges  shall 
choose  from  their  own  number  a  presiding  judge,  who  may 
be  removed  at  their  pleasure.     He  shall  distribute  the  busi- 
ness of  the  court  among  the  judges  thereof,  and  prescribe 
the  order  of  business.     The  judgments,  orders,  and  proceed- 
ings of  any  session  of  the  superior  court,  held  by  any  one 
or  more  of  the  judges  of  said  courts,  respectively,  shall  be 
equally  effectual  as  if  all  the  judges  of  said  respective  courts 
presided  at  such  session.     In  each  of  the  counties  of  Sacra- 
mento,  San  Joaquin,  Los  Angeles,   Sonoma,   Santa   Clara, 
and  Alameda,  there  shall  be  elected  two  such  judges.     The 
term  of  office  of  judges  of  the  superior  courts  shall  be  six 
years  from  and  after  the  first  Monday  of  January,  next  suc- 
ceeding their  election ;  provided,  that  the  twelve  judges  of 
the  superior  court,  elected  in  the  city  and  county  of  San 
Francisco  at  the  first  election  held  under  this  Constitution, 
shall,  at  their  first  meeting,  so  classify  themselves,  by  lot, 
that  four  of  them  shall  go  out  of  office  at  the  end  of  two 
years,  and  four  of  them  shall  go  out  of  office  at  the  end  of 
four  years,  and  four  of  them  shall  go  out  of  office  at  the  end 
of  six  years,  and  an  entry  of  such  classification  shall  be 
made  in  the  minutes  of  the  court,  signed  by  them,  and  a 
duplicate  thereof  filed  in  the  office  of  the  secretary  of  state. 
The  first  election  of  judges  of  the  superior  courts  shall  take 
place  at  the  first  general  election  held  after  the  adoption 
and  ratification  of  this  Constitution.     If  a  vacancy  occur  in 
the  office  of  judge  of  a  superior  court,  the  governor  shall 
appoint  a  person  to  hold  the  office  until  the  election  and 
qualification  of  a  judge  to  fill  the  vacancy,  which  election 
shall  take  place  at  the  next  succeeding  general  election,  and 
the  judge  so  elected  shall  hold  office  for  the  remainder  of 
the  unexpired  term. 


Art.  VI,  §  6 


CONSTITUTION    OF    1879. 


332 


SUPERIOR  JUDGES. — There  is  only  one  superior  court  in  the  city 
and  county  of  San  Francisco.  (Brown  v.  Campbell,  110  Cal.  644,  43 
Pac.  12.) 

The  departments  of  the  superior  court  of  a  single  county,  though 
theoretically  one  court,  are  practically  as  distinct,  for  the  trial  of 
causes,  as  other  superior  courts,  and  a  jury  drawn  for  one  department 
cannot  be  used  in  another.  (People  v.  Wong  Bin,  139  Cal.  60,  72  Pac. 
505.) 

There  is  no  probate  court  of  the  city  and  county  of  San  Francisco, 
and  there  is  no  law  authorizing  the  designation  of  any  one  depart- 
ment of  said  court  for  probate  jurisdiction;  but  each  of  the  twelve 
judges  has  jurisdiction  in  probate  matters.  (In  re  Pearsons,  113  Cal. 
577,  45  Pac.  849,  1062.) 

The  legislature  may  fix  the  commencement  of  the  term  of  a  county 
judge  as  well  as  the  time  of  election,  but  cannot  fix  the  term.  (Peo- 
ple V.  Rosborough,  14  Cal.  180.) 

Though  by  the  terms  of  this  section  the  term  of  office  of  the  supe- 
rior judges  appears  to  be  exclusive  of  the  first  Monday  in  January 
after  their  election,  yet  this  provision  is  controlled  by  section  20,  arti- 
cle XX,  making  the  terms  of  all  officers  elected  under  the  Constitution 
commence  on  the  first  Monday  after  the  first  day  of  January  next 
foUoM'ing  their  election.  (Merced  Bank  v.  Rosenthal,  99  Cal.  39,  31 
Pac.  849,  33  Pac.  732.) 

A  judge  elected  under  an  act  creating  an  additional  judge  holds  for 
six  years.     (People  v.  Waterman,  86  Cal.  27,  24  Pac.  807.) 

Under  this  section  the  commencement  of  the  first  regular  full  term 
of  every  newly  created  superior  judgeship  commences  on  the  first  Mon- 
day in  January  [first  Monday  after  the  first  day  of  January]  after 
the  next  ensuing  general  election,  and  the  legislature  has  no  power  to 
extend  the  provisional  term  of  office  of  a  newly  created  judge  beyond 
such  date.     (People  v.  Markham,  104  Cal.  232,  37  Pac.  918.) 

The  legislature  may  provide  for  the  appointment  of  a  judge  of  a 
newly  created  court  to  hold  until  the  next  election.  (Brodie  v.  Camp- 
bell, 17  Cal.  11.) 

The  legislature  has  no  power  to  increase  or  diminish  the  term  of 
office  of  superior  judges  as  fixed  by  the  Constitution;  and  such  judge, 
therefore,  cannot  hold  after  the  expiration  of  such  term  and  until 
his  successor  has  been  elected  or  appointed.  (People  v.  Campbell,  138 
Cal.  11,  70  Pac,  918.) 

A  district  judge,  elected  on  the  occasion  of  a  vacancy  in  the  office 
caused  by  the  resignation  of  the  incumbent,  holds,  not  merely  for  the 
unexpired  term,  but  for  the  full  six  years.  (People  v.  Burbank,  12 
Cal.  378.) 

A  person  elected  judge  of  the  district  court  is  entitled  to  hold  for 
six  years,  and  it  is  not  necessary  that  all  district  judges  should  be 
elected,  or  that  their  terms  should  expire,  at  the  same  time.  (People 
V.  Weller,  11  Cal.  77.) 

Where,  after  the  appointment  of  a  judge  to  fill  a  vacancy  caused 
by  the  death  of  the  incumbent,  the  legislature  passed  an  act  reducing 
the  number  of  judges  of  su.^h  county,  and  providing  that  the  act 
should  go  into  effect  immediately  in  case  of  a  vacancy  in  the  term 
prior  to  January  1,  1897,  the  act  did  not  go  into  effect  by  reason  of 


333  JUDICIAL    DEPARTMENT.  Art.  VI,  §§7,  8 

the  election  of  a  judge  to  fill  the  unexpired  term.  (Church  v.  Colgan, 
117  Cal.  685,  50  Pac.  12.) 

When  the  legislature  provides  for  an  additional  superior  judge,  the 
governor  may  appoint  a  provisional  judge  to  act  until  the  next  elec- 
tion, but  the  term  of  such  judge  ends  absolutely  with  the  beginning 
of  the  constitutional  term  of  the  additional  judge  and  is  not  extended 
by  the  failure  of  the  person  elected  to  qualify.  (Bush  v.  Nye,  6  Cal. 
App.  298,  92  Pac.  108.) 

This  section,  with  section  8,  article  VI,  means  that  where  a  judge  of 
a  superior  court  of  one  county  holds  a  superior  court  in  another  county 
upon  the  request  of  the  governor,  the  court  so  held  by  him  constitutes  a 
session  of  the  superior  court,  with  the  same  jurisdiction  as  if  one  of 
the  elected  judges  were  sitting,  and  the  amendment  of  November,  1910, 
did  not  change  the  rule,  only  having  been  adopted  to  remove  all  ques- 
tion of  doubt.  (Collins  v.  Johnston,  237  U.  S.  502,  59  L.  Ed.  1071j  35 
Sup.  Ct.  Eep.  649.) 

Superior  judges,  apportionment  of  business. 

Sec.  7.  In  any  county,  or  city  and  county,  other  than 
the  city  and  county  of  San  Francisco,  in  which  there  shall 
be  more  than  one  judge  of  the  superior  court,  the  judges  of 
such  court  may  hold  as  many  sessions  of  said  court  at  the 
same  time  as  there  are  judges  thereof,  and  shall  apportion 
the  business  among  themselves  as  equally  as  may  be. 

SESSIONS. — The  rule  is  the  same  in  the  city  and  county  of  San 
Francisco,  except  that  the  business  of  the  court  is  apportioned  by  the 
presiding  judge.     (See  section  6  of  this  article.) 

Judge  may  hold  court  in  other  county — Judge  pro  tempore. 

Sec.  8.  A  judge  of  any  superior  court  may  hold  a  supe- 
rior court  in  any  county,  at  the  request  of  a  judge  of  the 
superior  court  thereof,  and  upon  the  request  of  the  gov- 
ernor it  shall  be  his  duty  so  to  do.  But  a  cause  in  the  supe- 
rior court  may  be  tried  by  a  judge  pro  tempore,  who  must 
be  a  member  of  the  bar,  agreed  upon  in  writing  by  the  par- 
tics  litigant,  or  their  attorneys  of  record,  and  sworn  to  try 
the  cause  and  the  person  so  selected  shall  be  empowered  to 
act  in  such  capacity  in  all  further  proceedings  in  any  suit 
or  proceedings  tried  before  him  until  the  final  determina- 
tion thereof.  There  may  be  as  many  sessions  of  a  superior 
court  at  the  same  time  as  there  are  judges  thereof,  includ- 
ing any  judge  or  judges  acting  upon  request,  or  any  judge 
or  judges  pro  tempore.     The  judgments,  orders,  acts  and 


Art.  VI,  §  9 


CONSTITUTION    OF    1879. 


33i 


proceedings  of  any  session  of  any  superior  court  held  by 
one  or  more  judges  acting  upon  request,  or  judge  or  judges 
pro  tempore,  shall  be  equally  etiPective  as  if  the  judge  or 
all  of  the  judges  of  such  court  presided  at  such  session. 
(Amendment  adopted  November  8,  1910.) 

[ORIGINAL  SECTION.] 
Sec.  8.  A  judge  of  any  superior  court  may  hold  a  superior 
court  in  any  county,  at  the  request  of  a  judge  of  the  superior  court 
thereof,  and  upon  the  request  of  the  governor  it  shall  be  his  duty 
so  to  do.  But  a  cause  in  a  superior  court  may  be  tried  by  a  judge 
pro  tempore,  who  must  be  a  member  of  the  bar,  agreed  upon  in 
writing  by  the  parties  litigant  or  their  attorneys  of  record, 
approved  by  the  court,  and  sworn  to  try  the  cause. 

JUDGE    OF    ONE    COUNTY    SITTING   IN   ANOTHER.— Where  a 

judge  of  one  county  acts  in  another,  it  must  be  i^resuined  that  he  wag 
properly  requested  to  do  so.  (In  re  Corralitos  etc.  Canning  Co.,  130 
Cal.  570,  62  Pac.  1076.) 

Under  the  Constitution  of  1849  it  was  held  that  the  legislature 
might  authorize  a  judge  of  one  district  to  sit  and  act  in  another  dis- 
trict, although  no  express  provision  was  made  in  the  Constitution  on 
the  subject.     (People  v.  McCauley,  1  Cal.  379.) 

A  statute  authorizing  a  county  judge  of  one  county  to  hold  court 
for  the  county  judge  of  another  county  is  valid.  (People  v.  Mellon, 
40  Cal.  648.) 

A  judge  who  is  disqualified  has  power  to  select  a  qualified  judge  to 
try  the  case.     (People  v.  Ebey,  6  Cal.  App.  769,  93  Pac.  379.) 

This  section,  with  section  6,  article  VI,  means  that  where  a  judge 
of  a  superior  court  of  one  county  holds  a  superior  court  in  another 
county  upon  the  request  of  the  governor,  the  court  so  held  by  him 
constitutes  a  session  of  the  superior  court,  with  the  same  jurisdiction 
as  if  one  of  the  elected  judges  were  sitting,  and  the  amendment  of 
November,  1910,  did  not  change  the  rule,  only  having  been  adopted  to 
remove  all  question  of  doubt.  (Collins  v.  Johnston,  237  U.  S.  502, 
59  L.  Ed.   1071,  35  Sup.  Ct.  Eep.  649.) 

The  majority  of  the  judges  of  the  superior  court  of  a  county  may 
request  a  judge  of  another  county  to  preside  over  an  extra  session 
of  their  court.  (Williams  v.  Hawkins,  20  Cal.  App.  161,  128  Pac. 
754.) 

Leave  of  absence — Limitation  of  time. 

Sec.  9.  The  legislature  shall  have  no  power  to  grant 
leave  of  absence  to  any  judicial  officer ;  and  any  such  officer 
who  shall  absent  himself  from  the  state  for  more  than  sixty 
consecutive  days  shall  be  deemed  to  have  forfeited  his  office. 
The  legislature  of  the  state  may  at  any  time,  two-thirds  of 
the  members  of  the  senate  and  two-thirds  of  the  members 


335  JUDICIAL     DEPARTMENT.  Art.  VI,  §§  10,  11 

of  the  assembly  voting  therefor,  increase  or  diminish  the  num- 
ber of  judges  of  the  superior  court  in  any  county,  or  city  and 
county,  in  the  state ;  provided,  that  no  such  reduction  shall 
affect  any  judge  w^ho  has  been  elected. 

ADDITIONAL  JUDGES. — When  the  legislature  provides  for  an  ad- 
ditional judge,  the  governor  may  appoint  a  provisional  judge  to  act 
until  the  next  election,  but  the  term  of  such  judge  ends  absolutely 
with  the  beginning  of  the  constitutional  term  of  the  additional  judge 
and  is  not  extended  by  the  failure  of  the  person  elected  to  qualify. 
(Bush  V.  Nye,  6  Cal.  App.  298,  92  Pac.  108.) 

Justices  and  judg-es,  how  removed. 

Sec.  10.  Justices  of  the  supreme  court,  and  of  the  dis- 
trict courts  of  appeal,  and  judges  of  the  superior  courts  may 
be  removed  by  concurrent  resolution  of  both  houses  of  the 
legislature  adopted  by  a  two-thirds  vote  of  each  house.  All 
other  judicial  officers,  except  justices  of  the  peace,  may  be 
removed  by  the  senate  on  the  recommendation  of  the  gov- 
ernor; but  no  removal  shall  be  made  by  virtue  of  this  sec- 
tion unless  the  cause  thereof  be  entered  on  the  journal,  nor 
unless  the  party  complained  of  has  been  served  with  a  copy 
of  the  complaint  against  him  and  shall  have  had  an  oppor- 
tunity of  being  heard  in  his  defense.  On  the  question  of 
removal  the  ayes  and  noes  shall  be  entered  on  the  journal. 
(Amendment  adopted  November  8,  1904.) 

[OKIGINAL  SECTION.] 

Sec.  10.  Justices  of  the  supreme  court,  and  judges  of  the  supe- 
rior courts,  may  be  removed  by  concurrent  resolution  of  both 
houses  of  the  legislature,  adopted  by  a  two-thirds  vote  of  each 
house.  All  other  judicial  officers,  except  justices  of  the  peace,  may 
be  removed  by  the  senate  on  the  recommendation  of  the  governor, 
but  no  removal  shall  be  made  by  virtue  of  this  section,  unless  the 
cause  thereof  be  entered  on  the  journal,  nor  unless  the  party  com- 
plained of  has  been  served  with  a  copy  of  the  complaint  against 
him,  and  shall  have  had  an  opportunity  of  being  heard  in  his 
defense.  On  the  question  of  removal,  the  ayes  and  noes  shall  bo 
entered  on  the  journal. 

Justices  of  the  peace,  provision  for. 

Sec.  11.  The  legislature  shall  determine  the  number  of 
each  of  the  inferior  courts  in  incorporated  cities  or  towns, 
and  in  townships,  counties,  or  cities  and  counties,  according 


Art.  VI,  §  11  CONSTITUTION  OF  1879.  336 

to  the  population  thereof  and  the  number  of  judges  or  jus- 
tices thereof,  and  shall  fix  by  law  the  powers,  duties  and 
responsibilities  of  each  of  such  courts  and  of  the  judges  or 
justices  thereof;  provided,  such  powers  shall  not  in  any 
case,  trench  upon  the  jurisdiction  of  the  several  courts  of 
record,  except  that  the  legislature  shall  provide  that  said 
courts  shall  have  concurrent  jurisdiction  with  the  superior 
courts  in  cases  of  forcible  entry  and  detainer,  where  the 
rental  value  does  not  exceed  twenty-five  dollars  per  month, 
and  where  the  whole  amount  of  damages  claimed  does  not 
exceed  two  hundred  dollars,  and  in  cases  to  enforce  and 
foreclose  liens  on  personal  property  when  neither  the 
amount  of  liens  nor  the  value  of  the  property  amounts  to 
three  hundred  dollars.  (Amendment  approved  October  10, 
1911.) 

[OEIGINAL  SECTION.] 

Sec.  11.  The  legislature  shall  determine  the  number  of  justices 
of  the  peace  to  be  elected  in  townships,  incorporated  cities  and 
towns,  or  cities  and  counties,  and  shall  fix  by  law  the  powers, 
duties  and  responsibilities  of  justices  of  the  peace;  provided,  such 
powers  shall  not  in  any  case  trench  upon  the  jurisdiction  of  the 
several  courts  of  record,  except  that  said  justices  shall  have  con- 
current jurisdiction  with  the  superior  courts  in  cases  of  forcible 
entry  and  detainer,  where  the  rental  value  does  not  exceed  twenty- 
five  dollars  per  month,  and  where  the  whole  amount  of  damages 
claimed  does  not  exceed  two  hundred  dollars,  and  in  cases  to 
enforce  and  foreclose  liens  on  personal  property  when  neither  the 
amount  of  the  liens  nor  the  value  of  the  property  amounts  to  three 
hundred  dollars. 

JUSTICES  OF  THE  PEACE^^reation  of.— A  justice's  court  can- 
not be  created  by  a  freeholders'  charter.  (People  v.  Toal,  85  Cal, 
333,  24  Pac.  603;  People  v.  Sands,  102  Cal.  12,  36  Pac.  404;  Milner 
V.  Reibenstein,  85  Cal.  593,  24  Pac.  935;  Ex  parte  Reilly,  85  Cal.  632, 
24  Pac.  807;  Ex  parte  Giambonini,  117  Cal.  573,  49  Pac.  732.) 

The  laws  relating  to  this  portion  of  the  judicial  system  need  not  be 
uniform  throughout  the  state.  (Kahn  v.  Sutro,  114  Cal.  316,  33 
L.  R.  A.  620,  46  Pac.  87.) 

The  justice's  court  of  Berkeley  was  not  superseded  by  the  Constitu- 
tion.    (Ex  parte  Armstrong,  84  Cal.  655,  24  Pac.  598.) 

The  provision  of  the  County  Government  Act  authorizing  the  super- 
visors to  appoint  a  justice  of  the  peace  to  fill  a  vacancy  is  not  in  con- 
flict with  this  section  making  them  elective.  (People  v.  Chaves,  122 
Cal.  134,  54  Pac.  596.) 

Justices  of  the  peace  are  judicial  officers  and  must  be  elected  at 
the  general  election,  (McGrew  v.  Mayor  etc.  of  San  Jose,  55  Cal. 
611.) 


337  JUDICIAL    DEPARTMENT.  Art.  VI,  §  11 

Justices  of  the  peace  are  neither  city  nor  county  officers,  but  form 
part  of  the  judicial  system  of  the  state.  (People  v.  Cobb,  133  Cal. 
74,  65  Pac.  325;  Kahn  v.  Sutro,  114  Cal.  316,  33  L.  R.  A.  620,  46  Pac. 
87.) 

The  board  of  supervisors  of  a  county  may  by  ordinance  abolish 
two  contiguous  judicial  townships  having  a  justice's  court  in  each, 
and  may  establish  one  new  consolidated  township,  comprising  the  ter- 
ritory of  both  of  them.  (Proulx  v.  Graves,  143  Cal.  243,  76  Pac. 
1025.) 

The  constitutional  provision  as  to  justice's  courts  operates  specifi- 
cally only  by  means  of  such  local  legislation  as  the  state  legislature 
has  delegated  to  the  supervisors  under  general  laws,  and  automat- 
ically establishes  a  justice's  court  in  each  township  established  by 
the  local  body  which  continues  while  the  township  exists,  and  is 
merged  in  another  justice's  court  when  two  townships  are  merged 
into  one.     (Proulx  v.  Graves,  143  Cal.  243,  76  Pac.  1025.) 

Justices  of  the  peace  are  part  of  the  constitutional  judicial  system 
of  the  state.     (Graham  v.  Fresno,  151  Cal.  465,  91  Pac.  147.) 

The  legislature,  in  creating  justices'  courts,  is  justified  in  classify- 
ing municipalities  in  accordance  with  population.  (In  re  Johnson,  Q 
Cal.  App.  734,  93  Pac.  199.) 

As  to  whether  it  is  necessary  to  classify  justices'  courts  for  the 
purpose  of  establishing  them,  as  distinguished  from  prescribing  their 
duties  or  jurisdiction,  query?  (In  re  Johnson,  6  Cal.  App.  734,  93 
Pac.  199.) 

The  amendment  of  October  10,  1911,  of  this  section  does  not  abolish 
the  justices'  courts  and  other  inferior  courts  which  had  been  previ- 
ously established  by  acts  of  the  legislature.  They  remain  in  exist- 
ence with  the  jurisdiction  vested  in  them  by  the  acts  creating  them, 
until  the  legislature  shall,  in  the  exercise  of  the  power  given  by  the 
section  as  amended,  otherwise  provide.  (Matter  of  the  Application 
of  Woods,  161  Cal.  238,  118  Pac.  792.) 

Jurisdiction. — A  justice's  court  is  a  court  of  limited  and  inferior 
jurisdiction,  and  its  jurisdiction  must  be  shown  atfirmatively  by  a 
party  relying  upon  or  claiming  any  right  or  title  under  its  judgments. 
(Eltzroth  V.  Eyan,  89  Cal.  135,  26  Pac.  647;  Jones  v.  .Justice's  Court, 
97  Cal.  523,  32  Pac.  575;  Keybers  v.  McComber,  67  Cal.  395,  7  Pac. 
838.) 

There  can  be  no  concurrent  jurisdiction  of  any  special  proceeding 
other  than  the  two  mentio^ned  in  this  section.  (Edsall  v.  Short,  122 
Cal.  533,  55  Pac.  327.) 

No  power  can  be  conferred  upon  justices  of  the  peace  which  has 
been  by  the  Constitution  conferred  upon  other  courts.  (Zander  v. 
Coe,  5  Cal.  230;  Small  v.  Gwinn,  6  Cal.  447.) 

But  where  the  jurisdiction  conferred  by  the  Constitution  is  not 
exclusive,  the  same  may  be  conferred  upon  justices'  courts.  (People 
V.  Fowler,  9  Cal.  85.) 

Where  the  justice  of  the  peace  has  no  jurisdiction,  the  judgment 
should  be  reversed  and  the  cause  dismissed.  (Ford  v.  Smith  5  Cal. 
331.) 

Constitutiou — 22 


Art.  VI,  §  11 


CONSTITUTION    OF    1879. 


338 


It  has  been  held  that  an  appeal  to  the  superior  court  upon  ques- 
tions of  law  and  fact  does  not  enlarge  the  jurisdiction  of  the  justice's 
court,  or  confer  jurisdiction  upon  the  superior  court,  if  the  justice's 
court  had  no  jurisdiction.  (Ballerino  v.  Bigelow,  90  Cal.  500,  27  Pac. 
372.  But  see  De  Jarnatt  v.  Marquez,  1.32  Cal.  700,  64  Pac.  1090;  Hart 
V.  Carnall-Hopkins  Co.,  103  Cal.  132,  37  Pac.  196.) 

Where  the  verified  answer  in  an  action  in  a  police  court  discloses 
that  the  action  involves  the  legality  of  a  tax,  but,  notwithstanding, 
the  court  proceeds  with  the  case,  and  an  appeal  is  taken  to  the  supe- 
rior court  on  questions  of  law  and  fact,  the  superior  court  acquires 
jurisdiction — not  appellate,  but  original.  (Santa  Barbara  v.  Eldred, 
95  Cal.  378,  30  Pac.  562.) 

The  parties  to  an  action  in  the  justice's  court  cannot  confer  juris- 
diction upon  the  court  of  an  action  involving  the  title  or  possession 
of  real  estate  by  failing  to  plead  such  lack  of  jurisdiction  by  verified 
answer.     (King  v.  Kutner-Goldstein  Co.,  135  Cal.  65,  67  Pac.  10.) 

Cases  at  law. — A  justice's  court  has  no  jurisdiction  of  an  action 
upon  a  promissory  note,  where  the  amount  of  the  principal  sum  and 
attorneys'  fees  demanded  exceeds  three  hundred  dollars.  (De  Jarnatt 
V.  Marquez,  127  Cal.  558,  78  Am.  St.  Eep.  90,  60  Pac.  45.) 

The  justice's  court  has  jurisdiction  of  an  action  upon  a  money 
demand  of  less  than  three  hundred  dollars  for  improving  a  street 
under  a  private  contract,  where  there  is  nothing  in  the  pleadings  to 
show  that  the  action  involves  the  title  or  possession  of  real  estate. 
(Eaisch  v.  Sausalito  Land  etc.  Co.,  131  Cal.  215,  63  Pac.  346.) 

Where  several  suits  to  recover  the  same  property,  the  value  of 
which  is  less  than  three  hundred  dollars,  are  consolidated,  the  jus- 
tice's court  has  jurisdiction  of  the  action  as  consolidated.  (Cariaga 
v.  Dryden,  29  Cal.  307.) 

In  an  action  for  the  recovery  of  specific  property  in  a  justice's 
court,  the  standard  of  jurisdiction  is  "the  value  of  the  property,"  and 
it  would  seem  that  the  justice's  jurisdiction  for  the  incidental  dam- 
ages for  detention  is  unlimited;  and  at  all  events,  the  demand  for 
damages  cannot  oust  the  justice  of  jurisdiction,  if  the  value  of  the 
property  is  less  than  three  hundred  dollars.  (Astell  v.  Phillippi,  55 
Cal.  265;  Wratten  v.  Wilson,  22  Cal.  465.) 

A  justice's  court  has  no  jurisdiction  of  an  action  for  the  recovery 
of  property  alleged  to  exceed  three  hundred  dollars  in  value,  although 
the  complaint  prays  judgment  for  a  less  sum  in  case  possession  cannot 
be  had. '  (Shealor  v.'  Superior  Court,  70  Cal.  564,  11  Pac.  653.) 

A  justice's  court  has  no  jurisdiction  of  a  counterclaim  exceeding 
the  jurisdictional  amount.  (Malson  v.  Vaughn,  23  Cal.  61;  Maxfield 
V.  Johnson,  30  Cal.  545.) 

The  justice's  court  has  jurisdiction  of  an  action  for  the  recovery  of 
property  of  the  value  of  two  hundred  and  fifty  dollars  and  fifty  dol- 
lars damages,  where  the  plaintiff  only  prays  for  two  hundred  and 
ninety-nine  dollars,  since  both  the  value  of  the  property  and  the 
demand  are  less  than  three  hundred  dollars.  (Sanborn  v.  Superior 
Court,  60  Cal.  425.) 

Forcible  entry  and  detainer. — The  words  "forcible  entry  and  de- 
tainer" include  unlawful  detainer  after  the  expiration  of  the  term. 
(Caulfield   v.   Stevens,   28   Cal.    118;   Brummagim  v.   Spencer,   29   Cal. 


339  JUDICIAL    DEPARTMENT.  Art.  VI,  §  11 

661;  Mechara  v.  McKay,  37  Cal.  154;  Norblett  v.  Farwell,  38  Cal. 
155;  Stoppelkamp  v.  Mangeot,  42  Cal.  316;  Ivory  v.  Brown,  137  Cal. 
603,  70  Pac.  657.) 

The  actual  rental  value,  and  not  the  value  alleged  in  the  complaint, 
is  the  test  of  jurisdiction.  (Ballerino  v.  Bigelow,  90  Cal.  500,  27  Pac. 
372.) 

The  justice's  court  has  no  jurisdiction  of  an  action  of  unlawful 
detainer,  when  the  amount  of  rent  due  is  one  hundred  and  twenty  dol- 
lars, and  the  plaintiff  asks  to  have  it  trebled,  or  of  any  such  case 
when  the  amount  of  the  rent  when  trebled  exceeds  two  hundred  dol- 
lars.    (Hoban  v.  Eyan,  130  Cal.  96,  62  Pac.  296.) 

Real  property. — Where  the  proceedings  do  not  show  on  their  face 
that  the  title  or  po-ssession  of  real  property  is  involved,  but  only  that 
it  may  contingently  become  involved,  the  justice  has  jurisdiction  to 
try  the  case,  unless  it  appears  that  the  predicted  contingency  actually 
occurred  during  the  trial.  (Hart  v.  Carnall-Hopkins  Co.,  103  Cal.  132, 
37  Pac.  196.) 

Where  a  case  involving  the  title  or  possession  of  real  property  is 
appealed  from  the  justice's  court  on  questions  of  law  and  fact,  the 
superior  court  has  jurisdiction  to  determine  the  ease,  and  an  appeal 
may  be  taken  to  the  supreme  court  in  the  same  manner  as  if  the  action 
had  been  originally  brought  in  the  superior  court,  or  had  been  trans- 
ferred to  it  by  the  justice.  (Hart  v.  Carnall-Hopkins  Co.,  103  Cal. 
132,  37  Pac.  196.) 

A  complaint  to  recover  a  sum  paid  upon  a  contract  to  locate  the 
plaintiff  on  certain  government  land  does  not  necessarily  involve  the 
title  or  possession  of  real  property.  (Hart  v.  Carnall-Hopkins  Co., 
103  Cal.  132,  37  Pac.  196.) 

A  justice  of  the  peace  has  no  jurisdiction  to  try  a  cause  for  an  in- 
jury arising  out  of  a  diversion  of  water.  (Hill  v.  Newman,  5  Cal. 
445,  63  Am.  Dec.  140.) 

If  the  defendant's  verified  answer  raises  a  question  of  title  to  real 
property,  the  cause  must  be  transferred.  (Doherty  v.  Thayer,  31 
Cal.  140.) 

An  action  for  trespass  on  real  property  is  within  the  jurisdiction 
of  a  justice  of  the  peace,  when  the  damages  sued  for  are  less  than 
three  hundred  dollars.     (Pollock  v.  Cummings,  38  Cal.  683.) 

Fines,  etc. — An  act  requiring  actions  to  recover  a  penalty  imposed 
upon  a  railroad  company,  for  charging  a  passenger  an  excess  of  fare, 
to  be  brought  in  the  justice's  court,  is  valid.  (Reed  v.  Omnibus  R.  R. 
Co.,  33  Cal.  212;  Smith  v.  Omnibus  R.  R.  Co.,  36  Cal.  281.) 

The  justice's  court  has  jurisdiction  of  an  action  to  recover  two 
hundred  dollars  for  a  forfeiture  for  issuing  a  certificate  of  relief  in 
violation  of  section  596  of  the  Political  Code,  the  same  being  a  pen- 
alty given  by  statute,  and  not  a  municipal  fine.  (Thomas  v.  Justice's 
Court,  80  Cal.  40,  22  Pac.  80.) 

If,  in  an  action  to  recover  a  money  judgment  for  taxes,  an  answer 
is  filed  which  puts  in  issue  the  legality  of  the  tax,  the  justice  of  the 
peace  is  ousted  of  jurisdiction.     (People  v.  Mier,  24  Cal.  61.) 

Misdemeanors. — The  jurisdiction  of  justices'  courts  of  misdemean- 
ors is  exclusive  of  the  jurisdiction  of  the  superior  court.  (People  v. 
Palermo  Land  &  W,  Co.,  4  Cal.  App.  717,  89  Pac.  723,  725.) 


Art.  VI,  §§  12, 13      CONSTITUTION  OF  1879. 


340 


Miscellaneous. — A  statute  conferring  equitable  jurisdiction  upon 
justices'  courts  is  unconstitutional.  (Young  v.  Wright,  52  Cal.  407; 
Sutherland  v.  Sweem,  53  Cal.  48.) 

The  county  court  had  jurisdiction  to  try  an  indictment  for  misde- 
meanor, the  jurisdiction  of  the  justice  of  the  peace  being  exclusive 
as  to  misdemeanors  where  no  indictments  had  been  found.  (Ex 
parte  McCarthy,  53  Cal.  412.) 

Courts  of  record. 

Sec.  12.  The  supreme  court,  the  district  courts  of  ap- 
peal, the  superior  courts,  and  such  other  courts  as  the  legis- 
lature shall  prescribe,  shall  be  courts  of  record.  (Amend- 
ment adopted  November  8,  1904.) 

[ORIGINAL  SECTION.] 

Sec.  12.     The  supreme  court,  the  superior  courts,  and  such  other 
courts  as  the  legislature  shall  prescribe,  shall  be  couits  of  record. 


Jurisdiction  of  inferior  courts  to  be  fixed  by  legislature. 

Sec.  13.  The  legislature  shall  fix  by  law  the  jurisdiction 
of  any  inferior  courts  which  may  be  established  in  pursu- 
ance of  section  one  of  this  article,  and  shall  fix  by  law  the 
povt^ers,  duties,  and  responsibilities  of  the  judges  thereof. 

INFERIOR  COURTS. — The  jurisdiction,  powers,  duties  and  respon- 
sibilities of  inferior  courts  cannot  be  fixed  by  a  freeholders'  charter. 
(People  V.  Toal,  85  Cal.  333,  24  Pac.  603;  Ex  parte  Reilly,  85  Cal.  632, 
24  Pac.  807;  People  v.  Sands,  102  Cal.  12,  36  Pac.  404;  Milner  v. 
Reibenstein,  85  Cal.  593,  24  Pac.  935;  Ex  parte  Giambonini,  117  Cal. 
573,  49  Pac.  732.) 

The  municipal  superior  court  of  San  Francisco  had  no  authority  to 
issue  writs  of  quo  warranto,  it  being  an  inferior  court,  and  the  juris- 
diction not  being  expressly  conferred  by  statute.  (People  v.  Gilles- 
pie, 1  Cal,  342.) 

As  to  the  jurisdiction  of  the  recorder's  court,  see  Ex  parte  Soto,  88 
Cal.  624,  26  Pac.  530. 

The  legislature  may  create  a  recorder's  court  with  a  dual  jurisdic- 
tion— being  a  recorder  as  to  some  matters,  and  a  justice  of  the  peace 
as  to  others.     (Prince  v.  Fresno,  88  Cal.  407,  26  Pac.  606.) 

The  act  of  1889,  creating  the  police  court  of  the  city  and  county  of 
San  Francisco,  held  constitutional.  (Ex  parte  Lloyd,  78  Cal.  421,  20 
Pac.  872.) 

The  legislature  is  vested  with  power  to  confer  jurisdiction  over  all 
misdemeanors  on  inferior  courts,  unless  jurisdiction  over  any  of  them 
is  conferred  upon  some  other  court  by  the  Constitution  itself.  (Mat- 
ter of  Application  of  VVestenberg,  167  Cal.  309,  139  Pac.  674.) 


341  JUDICIAL    DEPARTMENT.  Alt.  VI,  §  §  14,  15 

Clerks  of  courts  and  court  conmussioners. 

Sec.  14.  The  county  clerks  shall  be  ex-officio  clerks  of 
the  courts  of  record  in  and  for  their  respective  counties  or 
cities  and  counties.  The  legislature  may  also  provide  for 
the  appointment,  by  the  several  superior  courts,  of  one  or 
more  commissioners  in  their  respective  counties,  or  cities 
and  counties,  with  authority  to  perform  chamber  business 
of  the  judges  of  the  superior  courts,  to  take  depositions,  and 
to  perform  such  other  business  connected  with  the  adminis- 
tration of  justice  as  may  be  prescribed  by  law.  (Amend- 
ment approved  October  10,  1911.) 

[ORIGINAL  SECTION.] 
Sec.  14.  The  legislature  shall  provide  for  the  election  of  a  clerk 
of  the  supreme  court  and  shall  fix  by  law  his  duties  and  compensa- 
tion, which  compensation  shall  not  be  increased  or  diminished 
during  the  term  for  which  he  shall  have  been  elected.  The  county 
clerks  shall  be  ex-officio  clerks  of  the  courts  of  record  in  and  for 
their  respective  counties,  or  cities  and  counties.  The  legislature 
may  also  provide  for  the  appointment,  by  the  several  superior 
courts,  of  one  or  more  commissioners  in  their  respective  counties, 
or  cities  and  counties,  with  authority  to  perform  chamber  business 
of  the  judges  of  the  superior  courts,  to  take  depositions,  and  per- 
form such  other  business  connected  with  the  administration  of 
justice  as  may  be  prescribed  by  law. 

Judicial  officers  not  to  receive  fees  and  perquisites. 

Sec.  15.  No  judicial  officer,  except  court  commissioners, 
shall  receive  to  his  own  use  any  fees  or  perquisites  of  office ; 
provided,  that  justices  of  the  peace  now  holding  office  shall 
receive  to  their  own  use  such  fees  as  are  noAv  allowed  by 
law  during  the  terms  for  which  they  have  been  elected. 
(Amendment  approved  October  10,  1911.) 

[ORIGINAL  SECTION.] 
Sec.  15.     No   judicial   officer,   except  justices  of  the  peace   and 
court  commissioners,  shall  receive  to  his  own  use  any  fees  or  per- 
quisites of  office. 

FEES  OF  JUDICIAL  OFFICERS.— The  words  "justices  of  the 
peace"  as  used  in  this  section  include  those,  by  whatever  name  they 
are  called,  who  are  invested  with  the  duties  assigned  by  the  law  to 
those  officers,  and  include  a  recorder  of  a  city.  (Curtis  v.  Sacra- 
mento, 13  Cal.  290.) 

Eight  of  justice  of  the  peace  to  recover  fees  in  separate  action. 
See  note,  9  Ann.  Cas.  372. 


Art.  VI,  §§  16, 17       CONSTITUTION  OF  1879.  342 

The  amendment  of  October  10,  1911,  of  this  section  does  not  abolish 
the  justices'  courts  and  other  inferior  courts  which  had  been  previ- 
ously established  by  acts  of  the  legislature.  They  remain  in  existence 
with  the  jurisdiction  vested  in  them  by  the  acts  creating  them,  until 
the  legislature  shall,  in  the  exercise  of  the  power  given  by  the  section 
as  amended,  otherwise  provide.  (Matter  of  the  Application  of  Woods, 
161  Cal.  238,  118  Pac.  792.) 

Supreme  court  opinions  to  be  published. 

Sec.  16.  The  legislature  shall  provide  for  the  speedy 
publication  of  such  opinions  of  the  supreme  court  and  of  the 
district  courts  of  appeal  as  the  supreme  court  may  deem  ex- 
pedient, and  all  opinions  shall  be  free  for  publication  by  any 
person.     (Amendment  adopted  November  8,  1904.) 

[ORIGINAL  SECTION.] 
Sec.  16.     The  legislature  shall  provide  for  the  speedy  publication 
of  such  opinions  of  the  supreme  court  as  it  may  deem  expedient, 
and  all  opinions  shall  be  free  for  publication  by  any  person. 

Compensation  of  justices  and  judg'es. 

Sec.  17.  The  justices  of  the  supreme  court  and  of  the 
district  courts  of  appeal,  and  the  judges  of  the  superior 
courts,  shall  severally,  at  stated  times  during  their  continu- 
ance in  office,  receive  for  their  service  such  compensation  as 
is  or  shall  be  provided  by  law.  The  salaries  of  the  judges 
of  the  superior  court,  in  all  counties  having  but  one  judge, 
and  in  all  counties  in  which  the  terms  of  the  judges  of  the 
superior  court  expire  at  the  same  time,  shall  not  hereafter 
be  increased  or  diminished  after  their  election,  nor  during 
the  term  for  which  they  shall  have  been  elected.  Upon  the 
adoption  of  this  amendment  the  salaries  then  established  by 
law  shall  be  paid  uniformly  to  the  justices  and  judges  then 
in  office.  The  salaries  of  the  justices  of  the  supreme  court 
and  of  the  district  courts  of  appeal  shall  be  paid  by  the 
state.  One-half  of  the  salary  of  each  superior  court  judge 
shall  be  paid  by  the  state ;  and  the  other  half  thereof  shall 
be  paid  by  the  county  for  which  he  is  elected.  On  and  after 
the  first  day  of  January,  A.  D.  one  thousand  nine  hundred 
and  seven,  the  justices  of  the  supreme  court  shall  each  re- 
ceive an  annual  salary  of  eight  thousand  dollars,  and  the 
justices  of  the  several  district  courts  of  appeal  shall  each 


343  JUDICIAL    DEPARTMENT.  Art.  VI,  §  17 

receive  an  annual  salary  of  seven  thousand  dollars ;  the  said 
salaries  to  be  payable  monthly.  (Amendment  adopted  No- 
vember 6,  1906.) 

[AMENDMENT  OF  1904.] 
Sec.  17.  The  justices  of  the  supreme  court  and  of  the  district 
courts  of  appeal,  and  the  judges  of  the  superior  court  shall  sev- 
erally, at  stated  times  during  their  continuance  in  office,  receive 
for  their  services  such  compensation  as  is  or  shall  be  provided  by 
law,  which  shall  not  be  increased  or  diminished  after  their  elec- 
tion, nor  during  the  term  for  which  they  shall  have  been  elected. 
The  salaries  of  the  justices  of  the  supreme  court  and  of  the  dis- 
trict courts  of  appeal  shall  be  paid  by  the  state.  One-half  of  the 
salary  of  each  superior  court  judge  shall  be  paid  by  the  state;  the 
other  half  thereof  shall  be  paid  by  the  county  for  which  he  is 
elected.     (Amendment  adopted  November  8,  1904.) 

[ORIGINAL  SECTION.] 
Sec.  17.  The  justices  of  the  supreme  court  and  judges  of  the 
superior  court  shall  severally,  at  stated  times  during  their  con- 
tinuance in  office,  receive  for  their  services  a  compensation  which 
shall  not  be  increased  or  diminished  after  their  election,  nor  dur- 
ing the  term  for  which  they  shall  have  been  elected.  The  salaries 
of  the  justices  of  the  supreme  court  shall  be  paid  by  the  state. 
One-half  of  the  salary  of  each  superior  court  judge  shall  be  paid  by 
the  state;  the  other  half  thereof  shall  be  paid  by  the  county  for 
which  he  is  elected.  During  the  term  of  the  first  judges  elected 
under  this  Constitution,  the  annual  salaries  of  the  justices  of  the 
supreme  court  shall  be  six  thousand  dollars  each.  Until  otherwise 
changed  by  the  legislature,  the  superior  court  judges  shall  receive 
an  annual  salary  of  three  thousand  dollars  each,  payable  monthly, 
except  the  judges  of  the  city  and  county  of  San  Francisco,  and  the 
counties  of  Alameda,  San  Joaquin,  Los  Angeles,  Santa  Clara,  Yuba 
and  Sutter  combined,  Sacramento,  Butte,  Nevada,  and  Sonoma, 
which  shall  receive  four  thousand  dollars  each. 

SALARIES  OF  JUDICIAL  OFFICERS.— This  provision  does  not 
exempt  judges  from  the  necessity  of  an  appropriation  for  their  salaries 
by  the  legislature.     (Myers  v.  English,  9  Cal.  341.) 

The  law  providing  for  an  increase  of  salary  of  justices  of  the  su- 
preme court,  though  an  existing  statute,  is  not  in  force,  because  there 
is  no  subject  upon  which  it  can  constitutionally  operate  until  the  ex- 
piration of  the  terms  of  the  present  justices.  (Harrison  v.  Colgan, 
148  Cal.  69,  82  Pac.  674.) 

The  terms  of  justices  of  the  district  court  of  appeal  began  to  run 
as  soon  as  that  office  was  created,  and  not  upon  their  appointment, 
and  any  increase  in  their  salary  cannot  affect  persons  appointed  for 
that  term.     (Harrison  v.  Colgan,  148  Cal.  69,  82  Pac.  674.) 

An  act  which  is  approved  before  the  beginning  of  a  term,  but  does 
not  go  into  effect  until  after  the  term  commences,  cannot  affect  the 
salary  of  officers  during  that  term.  (Harrison  v.  Colgan,  148  Cal.  69, 
82  Pac.  674.) 


Art.  VI,  §§  18, 19       CONSTITUTION  OF  1879.  344 

Justices  and  judges  ineligible  to  other  offices. 

Sec.  18.  The  judges  of  the  supreme  court,  and  the  dis- 
trict courts  of  appeal,  and  the  judges  of  the  superior  courts 
shall  be  ineligible  to  any  other  office  or  public  employment 
than  a  judicial  office  or  employment  during  the  term  for 
which  they  shall  have  been  elected.  (Amendment  adopted 
November  8,  1904.) 

[ORIGINAL    SECTION.] 
Sec.   IS.     The  justices   of  the   supreme   court  and  judges  of  the 
superior   courts   shall   be   ineligible   to    any   other   office   or   public 
employment  than  a  judicial  office  or  employment  during  the  term 
for  which  they  shall  have  been  elected. 

Charges  to  juries. 

Sec.  19.  Judges  shall  not  charge  juries  with  respect  to 
matters  of  fact,  but  may  state  the  testimony  and  declare 
the  law. 

INSTRUCTIONS. — A  mere  statement  of  the  evidence  is  not  in  vio- 
lation of  this  section.  (People  v.  Christensen,  85  Gal.  568,  24  Pac. 
888.) 

It  is  error  for  the  judge  to  state  his  impressions  of  the  substance 
and  effect  of  the  testimony  without  stating  its  contents,  and  to  tell 
the  jury  that  other  witnesses  corroborate  certain  statements  of  the 
prosecuting  witness.     (People  v.  Gordon,  88  Cal.  422,  26  Pac.  502.) 

An  instruction  that  "the  testimony  in  the  case  shows"  certain  facts 
is  violative  of  this  section.  (People  v.  Casey,  65  Cal.  260,  3  Pac. 
874.) 

A  charge  which  assumes  as  proven  a  fact  in  issue  is  erroneous. 
(Caldwell  v.  Center,  30  Cal.  539,  89  Am.  Dec.  131;  People  v.  Dick,  32 
Cal.  213.) 

As  to  the  effect  of  this  provision  on  section  2061  of  the  Code  of 
Civil  Procedure,  see  People  v.  Paulsell,  115  Cal.  6,  14,  46  Pac.  734. 

Improper  instructions. — The  following  particular  instructions  have 
been  held  to  violate  this  section:  An  instruction  that  possession  of 
property  recently  stolen  is  a  strong  circumstance  of  guilt  (People  v. 
Cline,  74  Cal.  575,  16  Pac.  391;  People  v.  Titherington,  59  Cal.  598; 
People  V.  Ah  Sing,  59  Cal.  400);  an  instruction  that  the  recent  pos- 
session of  stolen  goods  raises  a  presumption  that  the  possessor  is  the 
thief  (People  v.  Gutierrez,  74  Cal.  81,  15  Pac.  444;  People  v.  Mitchell, 
55  Cal.  236);  an  instruction  that  the  flight  of  the  defendant  is  strong 
presumptive  evidence  of  his  guilt  (People  v.  Wong  Ah  Ngow,  54  Cal. 
lol,  35  Am.  Rep.  69);  a  charge  as  to  the  relative  value  of  direct  and 
circumstantial  evidence  (People  v.  Vereneseneckoekockhoff,  129  Cal. 
497,  58  Pac.  156,  62  Pac.  Ill;  People  v.  O'Brien,  130  Cal.  1,  62  Pac. 
297);  an  instruction  that  "it  may  be  impossible  to  show  or  establish  a 
motive,  for  the  reason  that  we  cannot  fathom  the  mind  of  the  ac- 
cused on  trial,  and  ascertain  if  there  is  not  a  hidden  desire  of  ven- 


345  JUDICIAL    DEPARTMENT.  Art.  VI,  §  19 

geance  or  some  passion  to  be  gratified"  (People  v.  Vereneseneckock- 
ockhoff,  129  Cal.  497,  58  Pac.  156,  62  Pac.  Ill;  People  v.  Botkin,  132 
Cal.  231,  84  Am.  St.  Rep.  39,  64  Pac.  286);  an  instruction  that  certain 
facts  are  proper  to  be  taken  into  consideration  by  the  jury,  as  throw- 
ing doubt  upon  a  certain  controverted  fact  (People  v.  Lee,  119  Cal.  84, 
51  Pac.  22);  an  instruction  that  if  the  jury  are  satisfied  that  an  at- 
tempt to  commit  rape  was  made,  the  evidence  must  also  satisfy  them 
that  it  was  accomplished,  and  that  in  the  opinion  of  the  judge  upon 
the  evidence  there  could  be  no  conviction  of  an  attempt  (People  v. 
Baldwin,  117  Cal.  244,  49  Pac.  186);  an  instruction  that  if  the  prose- 
cutrix committed  lewd  and  immodest  acts,  she  was  not  of  chaste  char- 
acter (People  V.  Samonset,  97  Cal.  448,  32  Pac.  520);  an  instruction 
that  the  testimony  of  an  accomplice  ought  to  be  viewed  with  distrust, 
and  the  evidence  of  the  oral  admissions  of  a  party  with  caution 
(People  v.  O'Brien,  96  Cal.  171,  31  Pac.  45;  Goss  v.  Steiger  Terra 
Cotta  etc.  Works,  148  Cal.  155,  82  Pac.  681);  an  instruction  that,  if 
the  testimony  is  believed,  it  would  undoubtedly  make  out  a  case  of 
murder  in  the  first  degree,  and  that  it  tended  to  show  that  the  murder 
was  willful  (People  v.  Chew  Sing  Wing,  88  Cal.  268,  25  Pac.  1099); 
an  instruction  that,  the  testimony  of  the  prosecuting  witness  not 
being  disputed,  the  jury  were  bound  to  presume  it  to  be  true,  where 
there  is  a  conflict  as  to  the  facts  testified  to  by  such  witness  (People 
V.  Murray,  86  Cal.  31,  24  Pac.  802);  an  instruction  virtually  assuming 
the  testimony  of  a  party  to  a  material  fact  to  be  true  (Vulicevich  v. 
Skinner,  77  Cal.  239,  19  Pac.  424) ;  an  instruction  that  unless  the  dam 
had  gates  suflicient  for  certain  named  purposes,  it  was  insufficiently 
and  negligently  constructed  (Weiderkind  v.  Tuolumne  County  Water 
Co.,  65  Cal.  431,  4  Pac.  415);  an  instruction  that  "under  the  case  and 
proofs  as  here  made  no  presumption  of  negligence  arises  against  the 
defendant  from  the  mere  fact  that  an  accident  has  occurred"  (Sulli- 
van v.  Market  St.  Ry.  Co.,  136  Cal.  479,  69  Pac.  143) ;  an  instruction 
that  the  condemnation  sought  is  not  necessary  (Santa  Ana  v.  Gild- 
macher,  133  Cal.  395,  65  Pac.  883);  an  instruction  that  the  testimony 
of  an  accomplice  ought  to  be  viewed  with  distrust  and  the  evidence 
of  the  oral  admission  of  a  party  with  caution  (People  v.  Wardrip,  141 
Cal.  229,  74  Pac.  744) ;  an  instruction  that  if  the  jury  believe  a  par- 
ticular witness  they  shall  render  a  verdict  accordingly  (People  v. 
Barker,  137  Cal.  557,  70  Pac.  617);  an  instruction  assuming  that  there 
may  be  an  inference  or  definite  presumption  of  guilt  of  the  crime  of 
burglary  from  the  mere  unexplained  fact  of  possession  of  stolen  prop- 
erty (People  V.  Boxer,  137  Cal.  562,  70  Pac.  671.  See,  also,  Kerrigan 
V.  Market  Street  Ry.  Co.,  138  Cal.  506,  71  Pac.  621);  an  instruction 
that  to  run  an  engine  at  a  particular  rate  of  speed  is  negligence 
(Wyckoff  V.  Southern  Pac.  Co.,  4  Cal.  App.  94,  87  Pac.  203);  an  in- 
struction that  there  was  no  evidence  of  any  conspiracy  (People  v. 
King,  4  Cal.  App.  213,  87  Pac.  40O) ;  an  instruction  that  it  is  negli- 
gence for  a  person  to  fail  to  have  a  trench  (Ryan  v.  Oakland  Gas  etc. 
Co.,  10  Cal.  App.  484,  102  Pac.  558);  an  instruction  that  evidence  of 
previous  good  character  is  to  be  considered  "with  great  caution" 
(People  V.  Piner,  11  Cal.  App.  542,  105  Pac.  780);  an  instruction  that 
a  person's  confession  is  always  admitted  against  him,  for  the  law 
presumes  that  a  person  will  not  say  anything  untrue  against  himself 


Art.  VI,  §  19  CONSTITUTION  OF   1879.  346 

or  his  own  interests  (People  v.  Finer,  11  Cal.  App.  542,  105  Pac.  780); 
an  instruction  that  the  absence  of  motive  is  a  circumstance  in  favor 
of  the  accused  (People  v.  McGee,  14  Cal.  App.  99,  111  Pac.  264);  an 
instruction  that  a  certain  fact  constitutes  negligence  (Manning  v. 
App  Consol.  Gold  Min.  Co.,  149  Cal.  35,  84  Pac.  657);  an  instruction 
that  it  is  not  negligence  on  the  part  of  a  motorman  to  assume  that 
a  person  will  not  attempt  to  cross  the  track  in  front  of  an  approach- 
ing car,  which  is  so  near  as  to  render  a  collision  probable  (Bresee  v. 
Los  Angeles  Traction  Co.,  149  Cal.  131,  5  L.  E.  A.  (N.  S.)  1059,  85 
Pac.  152) ;  an  instruction  that  the  defendant  is  permitted  to  show 
"such  circumstances  by  way  of  mitigation  as  would  overcome  the  pre- 
sumption raised  by  the  law  of  malice"  (Davis  v.  Hearst,  160  Cal. 
143,  116  Pac.  530) ;  an  instruction  that  "You  are  hereby  instructed 
that  if  you  entertain  a  reasonable  doubt  as  to  whether  any  particu- 
lar witness  in  this  case  was  or  was  not  an  accomplice,  you  are  to  give 
the  benefit  of  such  doubt  to  the  defendant,  and  for  the  purpose  of 
this  case  yoai  must  consider  such  person  and  such  witness  an  accom- 
plice" (People  V.  Brewer,  19  Cal.  App.  742,  127  Pac.  808);  an  instruc- 
tion cautioning  the  jury  against  the  testimony  of  the  plaintiff  be- 
cause of  his  interest  in  the  event  of  the  trial.  (Dow  v.  City  of 
Oroville,  22  Cal.  App.  215,  134  Pac.  197.) 

Proper  instructions. — On  the  other  hand,  the  following  instructions 
have  been  held  not  to  violate  this  provision:  An  instruction  that  the 
jury  may  consider  the  circumstance  that  the  defendant  fled  from  ar- 
rest (People  V.  Eoss,  115  Cal.  233,  46  Pac.  1059);  an  instruction  that 
there  is  no  evidence  which  would  reduce  the  crime  charged  to  man- 
slaughter (People  V.  King,  27  Cal.  507,  87  Am.  Dec.  95);  an  instruc- 
tion that  there  was  evidence  tending  to  show  that  the  watch  was 
taken  near  the  door,  and  that  the  defendant  testified  that  he  picked 
it  up  near  the  counter  (People  v.  Perry,  65  Cal.  568,  4  Pac.  572);  an 
instruction  that  possession  of  stolen  goods  soon  after  they  were  stolen, 
unless  satisfactorily  explained,  is  a  circumstance  to  be  considered  in 
connection  with  other  suspicious  facts,  iu  determining  the  guilt  of  the 
defendant  (People  v.  Hannon,  85  Cal.  374,  24  Pac.  706);  an  instruc- 
tion that  the  jury  might  consider  the  relation  of  the  defendant  to 
the  case  in  considering  his  testimony,  the  consequences  to  him  re- 
sulting from  the  verdict,  etc.  (People  v.  O'Brien,  96  Cal.  171,  31  Pac, 
45);  an  instruction  that  a  ratification  may  be  found  from  an  unreason- 
able delay  to  object  (Hill  v.  Finigan,  77  Cal.  267,  11  Am.  St.  Eep.  279, 
19  Pac.  494) ;  an  instruction  as  to  the  credibility  of  witnesses  based 
on  section  1847  of  the  Code  of  Civil  Procedure  (People  v.  Matezuski, 
11  Cal.  App.  465,  105  Pac.  425) ;  an  instruction  in  a  prosecution  for 
rape  that  the  testimony  of  the  prosecutrix  need  not  be  corroborated 
and  that  it  was  sufficient  if  the  jury  believed  beyond  a  reasonable 
doubt  from  all  the  evidence  in  the  case  that  the  crime  had  been  com- 
mitted (People  V.  Akey,  163  Cal.  54,  124  Pac.  718);  an  instruction 
that  evidence  had  been  introduced  as  to  altercations  with,  threats 
against  and  assaults  upon  the  deceased  by  the  defendant  for  the  pur- 
pose of  showing  the  relations  existing  between  them  and  the  motive, 
and  that  it  might  be  considered  as  a  circumstance  in  determining 
whether  defendant  was  guilty  (People  v.  Wilson,  23  Cal.  App.  513,  138 
Pac.  971);  an  instruction  that  the  evidence  or  nonevidcnee  of  a  mo- 


347  JUDICIAL    DEPARTMENT.        Art.  VI,  §§  20,  21 

tive  for  the  eommission  of  the  crime  was  an  important  question  of 
fact,  and  that  in  criminal  cases  the  proof  of  the  motive  is  never  es- 
sential (People  V.  Wilson,  26  Cal.  App.  336,  146  Pac.  1048). 

What  are  proper  subjects  of  instructions.     See  note,  72  Am.  Dec. 
538. 

Invasion  of  province  of  jury.     See  no'te,  14  Am.  St.  Eep.  36. 

Instructions  on  circumstantial  evidence.     See  notes,   97   Am.   St. 

Rep.  789,  69  L.  R.  A.  193. 
Instructions  on  reasonable  doubt.     See  note,  48  Am.  St.  Rep.  .566. 
Propriety  of  instructions   containing  technical   terms.     See   note, 

11  Ann.  Cas.  622. 

Style  of  process. 

Sec.  20.  The  style  of  all  process  shall  be,  "The  People  of 
the  State  of  California,"  and  all  prosecutions  shall  be  con- 
ducted in  their  name  and  by  their  authority. 

PROCESS. — The  word  "process"  as  used  in  this  section  does  not 
apply  to  the  warrants  by  which  prisoners  are  held  and  committed  to 
the  state  prison  after  conviction.  (Ex  parte  Ahern,  103  Cal.  412,  37 
Pac.   390.) 

The  notice  to  be  given  to  creditors  on  filing  a  petition  in  insolvency 
is  not  process;  and  even  if  it  were  process,  the  fact  that  it  does  not 
run  in  the  name  of  the  people  of  the  state  of  California  is  not  a  fatal 
error  going  to  the  jurisdiction.     (Brewster  v.  Ludekins  19  Cal.  162.) 

An  action  to  punish  a  defendant  for  the  violation  of  an  ordinance 
is  a  criminal  action,  and  must  be  prosecuted  in  the  name  of  the 
people.     (Santa   Barbara   v.   Sherman,   61    Cal.   57.) 

An  act  authorizing  the  removal  of  a  board  of  supervisors  from  office 
for  delay  in  fixing  water  rates  "at  the  suit  of  any  interested  party" 
is  in  conflict  with  this  section.  (Fitch  v.  Board  of  Supervisors,  122 
Cal.  285,  54  Pac.  901.) 

An  order  of  arrest  in  a  civil  action  is  not  "process"  within  the 
meaning  of  this  section.     (Dusy  v.  Helm,  59  Cal.  188.) 

If  a  contempt  of  the  authority  of  the  board  of  equalization  were 
a  misdemeanor,  it  would  have  to  be  prosecuted  in  the  name  of  the 
people  of  the  state  of  California  and  in  the  ordinary  form  of  proce- 
dure, and  subject  to  the  common  rights  of  defendants  in  criminal  ac- 
tions. (People  V.  Latimer,  160  Cal.  716,  117  Pac.  1051,  concurring 
opinion   by   Beatty,    C.   J.) 

A  proceeding  by  a  municipal  corporation,  in  its  own  name  and  in  the 
form  and  with  the  process  of  a  civil  action,  to  recover  the  penalty 
for  a  sale  of  liquor  in  violation  of  an  ordinance,  which  results  in  the 
arrest  and  imprisonment  of  the  defendant  for  default  in  payment  of 
the  judgment  recovered,  violates  this  section.  (Matter  of  Applica- 
tion of  Clark,  24  Cal.  App.  389,  141  Pac.  831.) 

Clerk  and  reporter. 

Sec.  21.  The  supreme  court  shall  appoint  a  clerk  of  the 
supreme  court;  provided,  however,  that  any  person  elected 


Art.  VI,  §§22,  23       constitution  of  1879.  3i8 

to  the  office  of  clerk  of  the  supreme  court  before  the  adop- 
tion hereof,  shall  continue  to  hold  such  office  until  the  expi- 
ration of  the  term  for  which  he  may  have  been  elected. 
Said  court  may  also  appoint  a  reporter  and  not  more  than 
three  assistant  reporters  of  the  decisions  of  the  supreme 
court  and  of  the  district  courts  of  appeal.  Each  of  the  dis- 
trict courts  of  appeal  shall  appoint  its  own  clerk.  All  the 
officers  herein  mentioned  shall  hold  office  and  be  removable 
at  the  pleasure  of  the  courts  by  which  they  are  severally 
appointed,  and  they  shall  receive  such  compensation  as  shall 
be  prescribed  by  law,  and  discharge  such  duties  as  shall  be 
prescribed  by  law,  or  by  the  rules  or  orders  of  the  courts 
by  which  they  are  severally  appointed.  (Amendment 
approved  October  10,  1911.) 

[AMENDMENT    OF    1904.] 

Sec.  21.  The  supreme  court  may  appoint  a  reporter  and  not 
more  than  three  assistant  reporters  of  the  decisions  of  the  supreme 
court  and  of  the  district  courts  of  appeal.  Each  of  the  district 
courts  of  appeal  shall  appoint  its  own  clerk.  All  of  the  officers 
herein  mentioned  shall  hold  office  and  be  removable  at  the  pleasure 
of  the  courts  by  which  they  are  severally  appointed,  and  they  shall 
receive  such  compensation  as  shall  be  prescribed  by  law,  and  dis- 
charge such  duties  as  shall  be  prescribed  by  law,  or  by  the  rules 
or  orders  of  the  courts  by  which  they  are  severally  appointed. 
(Amendment  adopted  November  8,  1904.) 

[OEIGINAL  SECTION.] 

Sec.  21,  The  justices  shall  appoint  a  reporter  of  the  decisions 
of  the  supreme  court,  who  shall  hold  his  office  and  be  removable 
at  their  pleasure.  He  shall  receive  an  annual  salary  not  to  exceed 
twenty-five  hundred  dollars,  payable  monthly. 

REPORTER  OF  DECISIONS.— The  provision  of  this  section  as  to 
the  salary  of  the  reporter  is  prohibitory,  and  forbids  a  salary  greater 
than  two  thousand  five  hundred  dollars.  (Smith  v.  Kenfield,  57  Cal. 
138.) 

Judg-es  not  to  practice  law. 

Sec.  22.  No  judge  of  a  court  of  record  shall  practice  law 
in  any  court  of  this  state  during  his  continuance  in  office. 

Eligibility  of  justices  and  judges. 

Sec.  23.  No  one  shall  be  eligible  to  the  office  of  a  justice 
of  the  supreme  court,  or  of  a  district  court  of  appeal,  or  of 
a  judge  of  a  superior  court,  unless  he  shall  have  been  admit- 


349  JUDICIAL    DEPARTMENT.  Art.  VI,  §  §  24,  25 

ted   to   practice   before    the    supreme    court    of   the    state. 
(Amendment  adopted  November  8,  1904.) 
[OEIGINAL  SECTION.] 
Sec.  23.     No  one  shall  be  eligible  to  the  office  of  justice  of  the 
supreme  court,  or  to  the  office  of  judge  of  a  superior  court,  unless 
he  shall  have  been  admitted  to  practice  before  the  supreme  court 
of  the  state. 

Condition  precedent  to  draft  of  salary. 

Sec.  24.  No  judge  of  the  supreme  court  nor  of  a  district 
court  of  appeal,  nor  of  a  superior  court,  shall  draw  or  re- 
ceive any  monthly  salary  unless  he  shall  make  and  subscribe 
an  affidavit  before  an  officer  entitled  to  administer  oaths, 
that  no  cause  in  his  court  remains  pending  and  undecided, 
that  has  been  submitted  for  decision  for  a  period  of  ninety 
days.  In  the  determination  of  causes  all  decisions  of  the 
supreme  court  and  of  the  district  courts  of  appeal  shall  be 
given  in  writing,  and  the  grounds  of  the  decision  shall  be 
stated.  When  the  justices  of  a  district  court  of  appeal  are 
unable  to  concur  in  a  judgment,  they  shall  give  their  sev- 
eral opinions  in  writing  and  cause  copies  thereof  to  be  for- 
warded to  the  supreme  court.  (Amendment  adopted  No- 
vember 8,  1904.) 

[ORIGINAL  SECTION.] 
Sec.  24.  No  judge  of  a  superior  court  nor  of  the  supreme  court 
shall,  after  the  first  day  of  July,  one  thousand  eight  hundred  and 
eighty,  be  allowed  to  draw  or  receive  any  monthly  salary  unless 
he  shall  take  and  subscribe  an  affidavit  before  an  officer  entitled 
to  administer  oaths,  that  no  cause  in  his  court  remains  undecided 
that  has  been  submitted  for  decision  for  the  period  of  ninety  days. 

DECISIONS. — Failure  to  decide  all  cases  within  ninety  days  does 
not  work  a  forfeiture  of  the  salary  of  the  judge.  (Meyers  v.  Kenfield, 
62  Cal.  512.) 

The  judge  is  liable  to  no  penalty"-  for  failure  to  decide  a  case  within 
the  time  specified  except  the  penalty  prescribed,  and  he  cannot  be 
answerable  to  an  individual  for  damages  for  such  delay.  (Wyatt  v. 
Arnot,  7  Cal.  App.  221,  94  Pac.  86.) 

Supreme  court  commission. 

Sec.  25.  The  present  supreme  court  commission  shall  be 
abolished  at  the  expiration  of  its  present  term  of  office,  and 
no  supreme  court  commission  shall  be  created  or  provided 
for  after  January  1st,  A.  D.  1905.  (Amendment  adopted 
November  8,  1904.) 


Art.  VII,  §  1  CONSTITUTION  OF  1879.  350 

ARTICLE  VII. 

PARDONING  POWER. 

Section  1.  The  governor  shall  have  the  power  to  grant 
reprieves,  pardons,  and  commutations  of  sentence,  after 
conviction,  for  all  offenses  except  treason  and  cases  of  im- 
peachment, upon  such  conditions,  and  with  such  restrictions 
and  limitations,  as  he  may  think  proper,  subject  to  such 
regulations  as  may  be  provided  by  law  relative  to  the  man- 
ner of  applying  for  pardons.  Upon  conviction  for  treason, 
the  governor  shall  have  power  to  suspend  the  execution 
of  the  sentence  until  the  case  shall  be  reported  to  the  legis- 
lature at  its  next  meeting,  when  the  legislature  shall  either 
pardon,  direct  the  execution  of  the  sentence,  or  grant  a  fur- 
ther reprieve.  The  governor  shall  communicate  to  the  leg- 
islature, at  the  beginning  of  every  session,  every  case  ot 
reprieve  or  pardon  granted,  stating  the  name  of  the  convict, 
the  crime  for  which  he  was  convicted,  the  sentence,  its  date, 
the  date  of  the  pardon  or  reprieve,  and  the  reasons  for 
granting  the  same.  Neither  the  governor  nor  the  legisla- 
ture shall  have  power  to  grant  pardons,  or  commutations  of 
sentence,  in  any  case  where  the  convict  has  been  twice  con- 
victed of  felony,  unless  upon  the  written  recommendation 
of  a  majority  of  the  judges  of  the  supreme  court, 

PARDONING-  POWER. — The  pardoning  power  is  the  same  as  that 
exercised  by  the  representatives  of  the  English  crown  in  this  country 
in  colonial  times.     (People  v.  Bowen,  43  Cal.  439,  13  Am.  Rep.  148.) 

A  document  signed  by  the  governor  releasing  a  prisoner  before  the 
expiration  of  his  term  for  good  behavior  does  not  remove  the  dis- 
ability to  testify.     (Blanc  v.  Rodgers,  49  Cal.  15.) 

A  pardon  removes  the  disability  to  testify,  and  all  disabilities 
which  follow  the  conviction.  (People  v,  Bowen,  43  Cal.  439,  13  Am. 
Rep.  148.) 

An  offender  may  be  pardoned  after  he  has  suffered  the  punishment 
adjudged  for  his  crime.  (People  v.  Bowen,  43  Cal.  439,  13  Am.  Rep. 
148.) 

An  executive  act  restoring  a  convicted  criminal  to  the  right  of 
citizenship  is  not  a  pardon  and  does  not  remove  the  legal  infamy  and 
disability.     (People  v.  Bowen,  43  Cal.  439,  13  Am.  Rep.  148.) 

The  pardoning  power  does  not  extend  to  the  reinstatement  of  an 
attorney  excluded  from  the  practice  by  law  or  the  order  of  a  court. 
(Cohen  v.  Wright,  22  Cal.  293,  323.) 


I 

I 


351  PARDONING    POWER.  Art.  VII,  §  1 

The  governor  may  pardon  as  well  before  as  after  trial.  (HatzfieM 
V.  Gulden,  7  Watts  (Pa.),  152,  32  Am.  Dee.  750;  York  County  v.  Dal- 
housen,  45  Pa.  372;  Commonwealth  v.  Hitchman,  46  Pa.  357.) 

The  pardon  may  be  conditional  as  well  as  absolute.  (Flavell's  Case, 
8'  Watts  &  S.  (PaO,  197;  People  v.  Potter,  1  Park.  C.  C.  47;  Ex  parte 
Wells,  18  How.  307,  314,  15  L.  Ed.  421,  425.) 

If  a  pardon  be  obtainj'd  by  fraud  it  may  be  revoked  before  actual 
delivery.  (Ex  parte  De  Puy,  3  Ben.  307,"^  Fed.  Gas.  No.  3814;  Com- 
monwealth V.  Ahl,  43  Pa.  53.) 

The  pardoning  power  has  no  authority  to  decree  a  repayment  of  a 
fine.     (Cook  v.  Board  etc.  of  Middlesex,  27  N.  J.  L.  637.) 

Delivery  is  essential  to  give  effect  to  a  pardon.  (Matter  of  De 
Puy,  3  Ben.  307,  320,  Fed.  Cas.   No.   3814.) 

Definition  and  effect  of  pardons.     See  note,  59  Am.  Dec.  572. 
Conditional   pardons.     See  notes,   111   Am.   St.   l?ep.   lOS;    7   Ann, 

Cas.  92;  13  Ann.  Cas.  1103;  14  L.  E.  A.  285. 
Power  of  governor  to  pardon  as  confined  to  offenses  against  the 

state.     See  notes,  19  Ann.  Cas.  115;  Ann.  Cas.  1914A,  484. 
Necessity   and    sufficiency   of   recital    of    offense   in   pardon.     See 
note,  3  Ann.  Cas.  646. 

Pardon  as  restoring  forfeited  office.     See  note,  19  Ann.  Cas.  293. 
Right  to  recall  pardon.     See  note,  22  L.  E.  A.  (N.  S.)  238. 
Power  to  impose  in  pardon  conditions  extending  beyond  term  of 

sentence.     See   notes,   5   L.    E.   A.    (N.   S.)    1064;    20   L.   R.   A. 

(N.  S.)  337;  26  L.  E.  A.  (N.  S.)  110. 
Effect  of  pardon  on  right  to  disbar  attorney  convicted  of  felony. 

See  note,  16  L.  R.  A.  (N.  S.)   272. 


Art.  VIII,  §§  1,  2     CONSTITUTION   OF  1879.  352 

ARTICLE  VIII. 

MILITIA. 

§  1.     Organization  and  calling  forth  of. 
§  2.     Device,  banner,  or  flag  to  be  used. 

Organization  and  calling  forth  of. 

Section  1.  The  legislature  shall  provide,  by  law,  for  or- 
ganizing and  disciplining  the  militia,  in  such  manner  as  it 
may  deem  expedient,  not  incompatible  with  the  Constitu- 
tion and  laws  of  the  United  States.  Officers  of  the  militia 
shall  be  elected  or  appointed  in  such  manner  as  the  legisla- 
ture shall  from  time  to  time  direct,  and  shall  be  commis- 
sioned by  the  governor.  The  governor  shall  have  power  to 
call  forth  the  militia  to  execute  the  laws  of  the  state,  to  sup- 
press insurrections,  and  repel  invasions. 

MILITIA. — As  to  the  power  of  the  governor  to  call  out  the  militia, 
see  Stirason's  American  Statute  Law,  sec.  298. 

An  act  authorizing  the  governor  to  call  out  the  militia  when  he 
deemed  it  necessary  to  suppress  riots  or  mobs  was  held  unconstitu- 
ti&nal.     (Green  v.  State,  15  Lea  (Tenn.),  708.) 

The  mere  refusal,  by  incumbents  of  oflSces,  to  surrender  them  is 
not  an  insurrection,  and  will  not  justify  employment  of  the  militia. 
(In  re  Fire  etc.  Commrs.,  19  Colo.  482,  503,  36  Pac.  234.) 

Martial  law  other  than  in  time  of  war.     See  note,  98  Am.  St.  Eep. 

772. 
Martial  law.     See  note,  Ann.  Cas.  1914C,  22. 

Device,  banner,  or  flag  to  be  used. 

Sec.  2.  All  military  organizations  provided  for  by  this 
Constitution,  or  any  law  of  this  state,  and  receiving  state 
support,  shall,  while  under  arms  either  for  ceremony  or 
duty,  carry  no  device,  banner,  or  flag  of  any  state  or  nation, 
except  that  of  the  United  States  or  the  state  of  California. 


353  EDUCATION.  Art.  IX,  §§  1-3 

ARTICLE  IX. 

EDUCATION. 

§     1.  Proraotion  of  intellectual  improvement. 

§     2.  Superintendent   of  public  instruction. 

§     3.  County  superintendents  of  schools. 

§     4.  School  funds,  source  and  origin,  and  how  appropriated. 

§     5.  System  of  common  schools  to  be  provided. 

§     6.  School  system,  what  to  include. 

§     7.  State  and  local  boards  of  education — Text-books. 

§     8.  Sectarianism  prohibited. 

§     9.  University  fund,  creation,  management,  and  application  of. 

§   10.  Leland  Stanford  Junior  University. 

§   11.  The  California  School  of  Mechanical  Arts. 

§   12.  The  California  Academy  of  Sciences. 

§   13.  Cogswell  Polytechnical  College. 

Promotion  of  intellectual  improvement. 

Section  1.  A  general  diffusion  of  knowledge  and  intelli- 
gence being  essential  to  the  preservation  of  the  rights  and 
liberties  of  the  people,  the  legislature  shall  encourage  by  all 
suitable  means  the  promotion  of  intellectual,  scientific, 
moral,  and  agricultural  improvement. 

EDUCATION. — The  act  of  1880  establishing  the  state  agricultural 
society,  and  providing  for  the  exhibition  of  breeds  of  horses,  etc.,  and 
of  agricultural,  mechanical,  and  domestic  manufactures  and  produc- 
tions, is  authorized  by  this  section.  (Melvin  v.  State,  121  Cal.  16,  53 
Pac.  416;  People  v.  San  Joaquin  Valley  Agr.  Assn.,  151  Cal.  797,  91 
Pac.  740.) 

Superintendent  of  public  instruction. 

Sec.  2.  A  superintendent  of  public  instruction  shall,  at 
each  gubernatorial  election  after  the  adoption  of  this  Con- 
stitution, be  elected  by  the  qualified  electors  of  the  state. 
He  shall  receive  a  salary  equal  to  that  of  the  secretary  of 
state,  and  shall  enter  upon  the  duties  of  his  office  on  the  first 
Monday  after  the  first  day  of  January  next  succeeding  his 
election. 

County  superintendents  of  schools. 

Sec.  3.  A  superintendent  of  schools  for  each  county 
shall  be  elected  by  the  qualified  electors  thereof  at  each 
gubernatorial  election;  provided,  that  the  legislature  may 

Constitution— 23 


Art.  IX,  §  4  CONSTITUTION  OF  1879.  354 

authorize  two  or  more  counties  to  unite  and  elect  one  super- 
intendent for  the  counties  so  uniting. 

SUPERINTENDENT. — The  superintendent  of  schools  is  a  county 
officer.     (People  v.  Babcock,  114  Cal.  559,  46  Pac.  818.) 

The  superintendent  of  schools  of  San  Francisco  is  not  affected  by 
the  provision  of  the  County  Government  Act  making  the  board  of 
supervisors  the  appointing  power.  (People  v.  Babcock,  114  Cal.  559, 
46  Pac.  818.) 

The  election  of  superintendent  of  schools  is  governed  by  this  con- 
stitutional provision,  and  not  by  the  County  Government  Act.  (Kahn 
V.  Sutro,  114  Cal.  316,  33  L.  R.  A.  620,  46  Pac.  87.) 

Under  a  provision  of  the  Consolidation  Act  providing  that  officers 
appointed  to  fill  vacancies  should  hold  office  "until  the  regular  elec- 
tion then  next  following,"  a  superintendent  of  schools  thus  appointed 
will  only  hold  till  the  next  general  election,  and  not  till  the  next 
gubernatorial  election.  (People  v.  Babcock,  123  Cal.  307,  55  Pac. 
1017.) 

School  funds,  source  and  origin,  and  how  appropriated. 

Sec.  4.  The  proceeds  of  all  lands  that  have  been  or  may 
be  granted  by  the  United  States  to  this  state  for  the  support 
of  common  schools  which  may  be,  or  may  have  been,  sold 
or  disposed  of,  and  the  five  hundred  thousand  acres  of  land 
granted  to  the  new  states  under  an  act  of  Congress  distribu- 
ting the  proceeds  of  the  public  lands  among  the  several 
states  of  the  Union,  approved  A.  D.  one  thousand  eight  hun- 
dred and  forty-one,  and  all  estates  of  deceased  persons  who 
may  have  died  without  leaving  a  will  or  heir,  and  also  such 
per  cent  as  may  be  granted,  or  may  have  been  granted,  by 
Congress  on  the  sale  of  lands  in  this  state,  shall  be  and  re- 
main a  perpetual  fund,  the  interest  of  which,  together  with 
all  the  rents  of  the  unsold  lands,  and  such  other  means  as 
the  legislature  may  provide,  shall  be  inviolably  appropri- 
ated to  the  support  of  common  schools  through  out  the  state. 

SCHOOL  FUND. — The  word  "means"  includes  any  fund  arising 
from  annual  taxation  for  school  purposes  levied  under  general  laws 
passed  for  that  purpose.     (Crosby  v.  Lyon,  37  Cal.  242.) 

Whenever  the  legislature  raises  a  fund  for  the  support  of  common 
schools,  any  contemporaneous  or  subsequent  legislation  having  for  its 
object  the  diversion  of  such  fund  to  any  other  purpose  is  void. 
(Crosby  v.  Lyon,  37  Cal.  242.) 

This  section  does  not  limit  the  power  of  the  legislature  to  declare 
that  aliens  may  be  heirs.  It  contemplates  some  procedure  in  the  na- 
ture  of  office  found  by  which  the  right  of  the  state  shall  be  ascer- 


355  EDUCATION.  Art.  IX,  §  5 

tained  and  determined,  and  legislation  providing  for  the  sale  of  the 
land.     (State  v.  Smith,  70  Cal.  153,  12  Pae.   121.) 

Money  raised  for  the  support  of  the  common  schools  does  not  be- 
come a  part  of  the  school  fund  of  the  county  until  it  has  been  appor- 
tioned to  the  several  counties  by  the  superintendent  of  public  instruc- 
tion.    (McCord  V.  Slavin,  143  Cal.  325,  76  Pac.  1104.) 

Power  of  legislature  to  authorize  appropriation  of  school  or  other 
public  lands  of  state  for  irrigation  purposes.  See  note,  Ann. 
Cas.  1914B,  338. 

System  of  common  schools  to  be  provided. 

Sec.  5.  The  legislature  shall  provide  for  a  system  of 
common  schools  by  which  a  free  school  shall  be  kept  up  and 
supported  in  each  district  at  least  six  months  in  every  year, 
after  the  first  year  in  which  a  school  has  been  established. 

SCHOOL  SYSTEM. —  The  opportunity  for  instruction  in  public 
schools  given  by  the  statutes  and  Constitution  is  a  legal  right,  as 
much  as  a  vested  right  in  property.  (Ward  v.  Flood,  48  Cal.  36,  17 
Am.  Rep.  405.) 

By  the  Constitution  the  educational  department  is  made  a  state,  as 
distinguished  from  a  municipal,  care,  and  the  regulation  of  schools 
in  San  Francisco  does  not  remain  unchangeable  under  the  Consolida- 
tion Act.  The  Consolidation  Act  may  remain  for  municipal  purposes, 
yet  the  educational  department,  as  a  state  matter,  be  subject  to  gen- 
eral laws  passed  for  that  purpose.  (Earle  v.  Board  of  Education,  55 
Cal.  489.) 

This  provision  requires  the  adoption  of  one  system,  which  shall  be 
applicable  to  all  the  common  schools.  (Kennedy  v.  Miller,  97  Cal. 
429,  32  Pae.  558;  San  Diego  v.  Dauer,  97  Cal.  442,  32  Pac.  561;  Bruch 
V.  Colombet,  104  Cal.  347,  38  Pac.  45.) 

It  does  not  authorize  one  system  for  school  districts  having  boards 
of  education,  and  another  system  for  school  districts  not  having 
boards  of  education.     (Bruch  v.  Colombet,  104  Cal.  347,  38  Pac.  45.) 

It  is  within  the  constitutional  power  of  the  legislature  to  provide 
for  the  establishment  of  separate  schools  for  colored  children,  and  the 
exclusion  of  colored  children  from  schools  attended  by  white  children. 
(Wysinger  v.  Crookshank,  82  Cal.  588,  23  Pac.  54;  Ward  v.  Flood,  48 
Cal.  36,  17  Am.  Rep.  405.) 

But  the  legislature  cannot,  while  providing  a  system  of  education 
for  the  youth  of  the  state,  exclude  from  its  benefits  children  merely 
because  of  their  African  descent.  (Ward  v.  Flood,  48  Cal  36  17  Am 
Rep.  405.)  ' 

The  conference  of  the  general  power  on  the  state  board  of  education 
"to  adopt  rules  and  regulations  not  inconsistent  with  the  laws  of  this 
state  ...  for  the  government  of  public  schools"  is  in  harmony  with 
this  section  requiring  the  adoption  of  one  system  of  common  schools 
which  shall  be  applicable  to  all  the  common  schools  of  the  state  and 
the  term  "system"  itself  imports  a  unity   of  purpose,   as  well  as  an 


Art.  IX,  §  6  CONSTITUTION   OF   1879.  356 

entirety  of  operation.     (San  Francisco  v.  Hyatt,  163  Cal.  346,  125  Pac. 
751.) 

Separation  of  white  and  colored  pupils  for  purposes  of  education. 
See  note,  13  Ann.  Cas.  342. 

School  system,  what  to  include. 

Sec.  6.  The  public  school  system  shall  include  day  and 
evening  elementary  schools,  and  such  day  and  evening  sec- 
ondary schools,  normal  schools,  and  technical  schools  as 
may  be  established  by  the  legislature,  or  by  municipal  or 
district  authority.  The  entire  revenue  derived  from  the 
state  school  fund  and  from  the  general  state  school  tax  shall 
be  applied  exclusively  to  the  support  of  day  and  evening 
elementary  schools;  but  the  legislature  may  authorize  and 
cause  to  be  levied  a  special  state  school  tax  for  the  support 
of  day  and  evening  secondary  schools  and  technical  schools, 
or  either  of  such  schools,  included  in  the  public  school  sys- 
tem, and  all  revenue  derived  from  such  special  tax  shall  be 
applied  exclusively  to  the  support  of  the  schools  for  which 
such  special  tax  shall  be  levied.  (Amendment  adopted 
November  3,  1908.) 

[AMENDMENT  OF  1902.] 

Sec.  6.  The  public  school  system  shall  include  primary  and 
grammar  schools,  and  such  high  schools,  evening  schools,  normal 
schools,  and  technical  schools  as  may  be  established  by  the  legis- 
lature, or  by  municipal  or  district  authority.  The  entire  revenue 
derived  from  the  state  school  fund  and  from  the  general  state 
school  tax  shall  be  applied  exclusively  to  the  support  of  primary 
and  grammar  schools;  but  the  legislature  may  authorize  and  cause 
to  be  levied  a  special  state  school  tax  for  the  support  of  high 
schools  and  technical  schools,  or  either  of  such  schools,  included 
in  the  public  school  system,  and  all  revenue  derived  from  such 
special  tax  shall  be  applied  exclusively  to  the  support  of  the 
schools  for  which  such  special  tax  shall  be  levied.  (Amendment 
adopted  November  4,  1902.) 

[ORIGINAL    SECTION.] 

Sec.  6.  The  public  school  system  shall  include  primary  and 
grammar  schools,  and  such  high  schools,  evening  schools,  normal 
schools,  and  technical  schools  as  may  be  established  by  the  legisla- 
ture, or  by  municipal  or  district  authority;  but  the  entire  revenue 
derived  from  the  state  school  fund,  and  the  state  school  tax,  shall 
be  applied  exclusively  to  the  support  of  primary  and  grammar 
schools. 


357  EDUCATION.  Art.  IX,  §  7 

SCHOOLS  AND  FUNDS.— High  schools  are  an  integral  part  of  our 
public  school  system.  (Chico  High  School  Board  v.  Board  of  Super- 
visors, 118  Cal.  115,  50  Pae.  275.) 

A  law  providing  a  special  method  of  levying  a  tax  for  high  schools, 
differing  from  that  provided  for  other  school  districts,  is  valid. 
(People  V.  Lodi  High  School  Dist.,  124  Cal.  694,  57  Pac.  660.) 

A  statute  authorizing  county  assessors  to  retain,  as  their  compen- 
sation in  collecting,  fifteen  per  cent  of  all  poll  taxes  collected  by 
them,  is  not  in  conflict  with  this  section,  since  the  word  "exclusively" 
is  directed  to  the  point  that  the  school  funds  must  be  applied  to  the 
support  of  primary  and  grammar  schools,  to  the  exclusion  of  other 
schools.     (San  Luis  Obispo  County  v.  Felts,  104  Cal.  60,  37  Pac.  780.) 

The  words  "average  daily  attendance,"  used  in  subdivision  4  of 
section  1858  o-f  the  Political  Code,  in  regard  to  apportionment  of 
funds,  mean  average  daily  attendance  in  the  common  schools  of  the 
district,  and  do  not  include  the  high  schools  and  evening  schools. 
(Stockton  School  District  v.  Wright,  134  Cal.  64,  66  Pac.  34.) 

All  school  funds  must  be  applied  exclusively  to  primary  and  gram- 
mar schools.     (Stockton  District  v.  Wright,  134  Cal.  64,  66  Pac.  34.) 

The  provision  that  the  moneys  derived  from  the  sale  of  uncovered 
lands  should  be  "paid  into  the  school  fund  of  the  county  where  the 
land  lies"  was  not  an  "appropriation"  of  these  moneys.  (McCord  v. 
Slavin,  143  Cal.  325,  76  Pac.  1104.) 

While  high  schools  are  part  of  the  public  school  system,  it  was  in- 
tended to  make  them  entirely  distinct  from  primary  and  grammar 
schools.     (Brown  v.  City  of  Visalia,  141  Cal.  372,  74  Pac.  1042.) 

The  term  "public  schools"  in  section  798  of  the  Municipal  Corpora- 
tion Act  does  not  embrace  high  schools.  (Brown  v.  City  of  Visalia, 
141  Cal.  372,  74  Pac.  1042.) 

Kindergartens  are  not  part  of  the  "primary  and  grammar"  schools, 
and  attendance  upon  them  cannot  be  considered  in  apportioning  the 
state  school  fund.     (Los  Angeles  v.  Kirk,  148  Cal.  385,  83  Pac.  250.) 

Evening  schools  having  the  status  of  a  high  school  are  authorized 
by  the  Constitution  as  a  part  of  the  public  school  system.  (Board  of 
Education  v.  Hyatt,  152  Cal.  515,  93  Pac.  117.) 

State  and  local  board  of  education — Text-books. 

Sec.  7.  The  legislature  shall  provide  for  the  appoint- 
ment or  election  of  a  state  board  of  education,  and  said 
board  shall  provide,  compile,  or  cause  to  be  compiled,  and 
adopt,  a  uniform  series  of  text-books  for  use  in  the  day  and 
evening  elementary  schools  throughout  the  state.  The  state 
board  may  cause  such  text-books,  when  adopted,  to  be 
printed  and  published  by  the  superintendent  of  state  print- 
ing, at  the  state  printing  office ;  and  wherever  and  however 
such  text-books  may  be  printed  and  published,  they  shall  be 
furnished  and  distributed  by  the  state  free  of  cost  or  any 
charge   whatever,   to   all   children   attending   the   day   and 


Art.  IX,  §  7  CONSTITUTION  OF   1879.  358 

evening  elementary  schools  of  the  state,  under  such  con- 
ditions as  the  legislature  shall  prescribe.  The  text-books, 
so  adopted,  shall  continue  in  use  not  less  than  four  years, 
without  any  change  or  alteration  whatsoever  which  will  re- 
quire or  necessitate  the  furnishing  of  new  books  to  such 
pupils,  and  said  state  board  shall  perform  such  other  duties 
as  may  be  prescribed  by  law.  The  legislature  shall  provide 
for  a  board  of  education  in  each  county  in  the  state.  The 
county  superintendents  and  the  county  boards  of  education 
shall  have  control  of  the  examination  of  teachers  and  the 
granting  of  teachers'  certificates  within  their  respective 
jurisdictions.     (Amendment  adopted  November  5,  1912.) 

[AMENDMENT  OF  1911.] 
Sec.  7.  The  governor,  the  superintehdent  of  public  instruction, 
the  president  of  the  University  of  California,  and  the  professor  of 
pedagogy  therein  and  the  principals  of  the  state  normal  schools, 
shall  constitute  the  state  board  of  education,  and  shall  compile,  or 
cause  to  be  compiled,  and  adopt  a  uniform  series  of  text-books  for 
use  in  the  common  schools  throughout  the  state.  The  state  board 
may  cause  such  text-books  when  adopted,  to  be  printed,  and  pub- 
lished by  the  superintendent  of  state  printing,  at  the  state  print- 
ing office;  and  when  so  printed  and  published,  to  be  distributed 
and  sold  at  the  cost  price  of  printing,  publishing  and  distributing 
the  same.  The  text-books,  so  adopted,  shall  continue  in  use  not 
less  than  four  years,  without  any  change  or  alteration  whatsoever 
which  will  require  or  necessitate  the  purchase  of  new  books  by 
such  pupils,  and  said  state  board  shall  perform  such  other  duties 
as  may  be  prescribed  by  law.  The  legislature  shall  provide  for  a 
board  of  education  in  each  county  in  the  state.  The  county  su- 
perintendents and  the  county  boards  of  education  shall  have  con- 
trol of  the  examination  of  teachers  and  the  granting  of  teachers' 
certificates  within  their  respective  jurisdictions.  (Amendment  ap- 
proved October  10,  1911.) 

[AMENDMENT  OF  1894.] 

Sec.  7.  The  governor,  the  superintendent  of  public  instruction, 
the  president  of  the  University  of  California,  and  the  professor 
of  pedagogy  therein,  and  the  principals  of  the  state  normal  schools 
shall  constitute  the  state  board  of  education,  and  shall  compile,  or 
cause  to  be  compiled,  and  adopt,  a  uniform  series  of  text-books 
for  use  in  the  common  schools  throughout  the  state.  The  state 
board  may  cause  such  text-books,  when  adopted,  to  be  printed  and 
published  by  the  superintendent  of  state  printing,  at  the  state 
printing  office,  and,  when  so  printed  and  published,  to  be  distrib- 
uted and  sold  at  the  cost  price  of  printing,  publishing,  and  dis- 
tributing the  same.  The  text-books  so  adopted  shall  continue  in 
use  not  less  than  four  years;  and  said  state  board  shall  perform 


I 


359  EDUCATION.  Art.  IX,  §  7 

such  other  duties  as  may  be  prescribed  by  law.  The  legislature 
shall  provide  for  a  board  of  education  in  each  county  in  the  state. 
The  county  superintendents  and  the  county  boards  of  education 
shall  have  control  of  the  examination  of  teachers  and  the  granting 
of  teachers'  certificates  within  their  respective  jurisdictions. 
(Amendment   adopted   November   6,   1894.) 

[AMENDMENT  OP  1885.] 
Sec.  7.  The  governor,  superintendent  of  public  instruction,  and 
the  principals  of  the  state  normal  schools,  shall  constitute  the  state 
board  of  education,  and  shall  compile,  or  cause  to  be  compiled,  and 
adopt  a  uniform  series  of  text-books  for  use  in  the  common  schools 
throughout  the  state.  The  state  board  may  cause  such  text-books, 
when  adopted,  to  be  printed  and  published  by  the  superintendent 
of  state  printing,  at  the  state  printing  office;  and  when  so  printed 
and  published,  to  be  distributed  and  sold  at  the  cost  price  of  print- 
ing, publishing,  and  distributing  the  same.  The  text-books,  so 
adopted,  shall  continue  in  use  not  less  than  four  years;  and  said 
state  board  shall  perform  such  other  duties  as  may  be  prescribed 
by  law.  The  legislature  shall  provide  for  a  board  of  education  in 
each  county  in  the  state.  The  county  superintendents  and  the 
county  boards  of  education  shall  have  control  of  the  examination 
of  teachers  and  the  granting  of  teachers'  certificates  within  their 
respective  jurisdiction.     (Eatification  declared  February  12,  1885.) 

[ORIGINAL  SECTION.] 
Sec.  7.  The  local  boards  of  education,  and  the  boards  of  super- 
visors, and  the  county  superintendents  of  the  several  counties 
which  may  not  have  county  boards  of  education,  shall  adopt  a 
series  of  text-books  for  the  use  of  the  common  schools  within  their 
respective  jurisdictions;  the  text -books  so  adopted  shall  continue 
in  use  for  not  less  than  four  years;  they  shall  also  have  control 
of  the  examination  of  teachers  and  the  granting  of  teachers'  cer- 
tificates within  their  several  jurisdictions. 

TEXT-BOOKS,  ETC. — This  section  is  self-executing  in  so  far  as  it 
provides  for  the  selection  of  text-books  by  local  boards,  and  operated 
as  a  repeal  of  the  act  of  1875,  which  provided  that  the  text-books  in 
iise  in  the  years  1873,  187-1,  1875,  should  be  continued  in  use  until 
otherwise  provided  by  statute.  (People  v.  Board  of  Education,  55 
Cal.  331.) 

The  board  of  education  is  a  legal  body,  capable  of  suing  for  lots 
conveyed  to  them  by  the  fund  commissioners.  (Board  of  Education 
V.  Fowler,  19  Cal.  11.) 

The  phrase  "local  board"  applies  to  the  territory  over  which  it  ex- 
ercises jurisdiction  as  a  board.  Each  board  is  local  as  to  the  territory 
of  its  jurisdiction.  The  board  in  a  city  is  local  to  the  city;  the  board 
of  a  township  is  local  as  to  the  township;  and  the  board  of  a  county 
is  local  as  to  the  county;  and  where  portions  of  a  county  are  subject 
to  local  boards  for  such  portions,  the  county  board  is  local  as  to  the 
balance  of  the  county.     (People  v.  Board  of  Education,  55  Cal.  331.) 

The  provision  of  this  section  conferring  upon  county  superintend- 
ents and  the  county  board  of  education  "control,"  etc.,  is  not  to  ba 


Art.  IX,  §§8, 9        CONSTITUTION   OF   1879.  360 

construed  as  conferring  unlimited  or  exclusive  control,  or  power  to 
legislate  upon  that  subject,  nor  as  taking  away  the  power  of  the 
legislature  to  prescribe  the  rules  by  which  the  qualifications  of  teach- 
ers shall  be  determined,  and  to  determine  what  shall  entitle  them  to  a 
certificate.     (Mitchell  v.  Winnek,  117  Cal.  520,  49  Pac.  579.) 

Statutory  regulation  of  text-books  used  in  public  schools.     See 
note,  Ann.  Cas.  1912B,  476. 

Sectarianism  prahibited. 

Sec.  8.  No  public  money  shall  ever  be  appropriated  for 
the  support  of  any  sectarian  or  denominational  school,  or 
any  school  not  under  the  exclusive  control  of  the  officers  of 
the  public  schools;  nor  shall  any  sectarian  or  denomina- 
tional doctrine  be  taught  or  instruction  thereon  be  permit- 
ted, directly  or  indirectly,  in  any  of  the  common  schools  of 
this  state. 

SECTARIAN  SCHOOLS. — An  act  providing  for  the  commitment  of 
minor  criminals  to  nonsectarian  charitable  corporations,  the  expense 
of  maintenance  to  be  paid  by  the  county,  is  not  in  violation  of  this 
section,  since  it  only  applies  to  schools  such  as  are  provided  for  b\' 
the  Constitution.  (Boys'  and  Girls'  Aid  Soc.  v.  Reis,  71  Cal.  627,  12 
Pac.  796.) 

What  are  sectarian  schools  or  institutions.     See  note,  8  Am.  St. 

Eep.  411. 
Eeligious  and  sectarian  teaching  in  schools,      See  notes,  105  Am. 
St.  Rep.  151;  2  Ann.  Cas.  522;  19  Ann.  Cas.  234. 

Wearing  of  religious  garb  by  teacher  in  public  school.     See  notes, 
6  Ann.  Cas.  435;  Ann.  Cas.  1912A,  428. 

University  fund,  creation,    managfement,  and  application  of. 

Sec.  9.  The  University  of  California  shall  constitute  a 
public  trust,  and  its  organization  and  government  shall  be 
perpetually  continued  in  the  form  and  character  prescribed 
by  the  organic  act  creating  the  same,  passed  March  twenty- 
third,  eighteen  hundred  and  sixty-eight  (and  the  several 
acts  amendatory  thereof),  subject  only  to  such  legislative 
control  as  may  be  necessary  to  insure  compliance  with  the 
terms  of  its  endowments,  and  the  proper  investment  and 
security  of  its  funds.  It  shall  be  entirely  independent  of 
all  political  or  sectarian  influence,  and  kept  free  therefrom 
in  the  appointment  of  its  regents,  and  in  the  administration 
of  its  affairs;  provided,  that  all  the  moneys  derived  from 
the  sale  of  the  public  lands  donated  to  this  state  by  act  of 


361  EDUCATION.  Art.  IX,  §  10 

Congress,  approved  July  second,  eighteen  hundred  and 
sixty-tAvo  (and  the  several  acts  amendatory  thereof)  shall 
be  invested  as  provided  by  said  acts  of  Congress,  and  the 
interest  of  said  moneys  shall  be  inviolably  appropriated  to 
the  endowment,  support,  and  maintenance  of  at  least  one 
college  of  agriculture,  where  the  leading  objects  shall  be 
(without  excluding  other  scientific  and  classical  studies, 
and  including  military  tactics),  to  teach  such  branches  of 
learning  as  are  related  to  scientific  and  practical  agricul- 
ture and  the  mechanic  arts,  in  accordance  with  the  require- 
ments and  conditions  of  said  acts  of  Congress;  and  the 
legislature  shall  provide  that  if,  through  neglect,  misappro- 
priation, or  any  other  contingency,  any  portion  of  the  funds 
so  set  apart  shall  be  diminished  or  lost,  the  state  shall  re- 
place such  portion  so  lost  or  misappropriated,  so  that  the 
principal  thereof  shall  remain  forever  undiminished.  No 
person  shall  be  debarred  admission  to  any  of  the  collegiate 
departments  of  the  university  on  account  of  sex. 

UNIVERSITY  OF  CALIFORNIA. — The  University  of  California  is 
a  public  corporation.  (Estate  of  Koyer,  123  Cal.  614,  44  L.  R.  A.  364, 
56  Pac.  461.) 

The  regents  of  the  university  are  not  public  officers.  (Lundy  v. 
Delmas,  104  Cal.  655,  26  L.  E.  A.  651,  38  Pac.  445.) 

After  the  affiliation  of  tlie  Hastings  College  of  the  Law  with  the  Uni- 
versity of  California,  the  legislature  had  no  power  to  change  the  form 
of  the  government  of  the  college,  (People  v.  Kewen,  69  Cal.  215,  10 
Pac.  393.) 

The  present  Constitution  raised  the  University  of  California  to  the 
dignity  of  a  constitutional  department  or  function  of  the  state  gov- 
ernment.    (Williams  v.  Wheeler,  23  Cal.  App.  619,  138  Pac.  937.) 

The  authorities  of  the  university  have  the  power  to  make  reason- 
able rules  and  regulations  relating  to  the  health  of  its  students. 
(Williams  v.  Wheeler,  23  Cal.  App.  619,  138  Pac.  937.) 

Leland  Stanford  Junior  University. 

Sec.  10.  The  trusts  and  estates  created  for  the  founding, 
endowment,  and  maintenance  of  the  Leland  Stanford  Junior 
University,  under  and  in  accordance  with  "An  act  to  ad- 
vance learning,  etc.,"  approved  March  ninth,  eighteen  hun- 
dred and  eighty-five  by  the  endowment  grant  executed  by 
Leland  Stanford  and  Jane  Lathrop  Stanford  on  the  elev- 
enth day  of  November,  A.  D.  eighteen  hundred  and  eighty- 


Art.  IX,  §  11  CONSTITUTION  OF  1879.  362 

five,  and  recorded  in  liber  eighty-three  of  deeds,  at  page 
twenty-three  et  seq.,  records  of  Santa  Clara  county,  and  by 
the  amendments  of  such  grant,  and  by  gifts,  grants,  be- 
quests, and  devises  supplementary  thereto,  and  by  confirm- 
atory grants,  are  permitted,  approved,  and  confirmed.  The 
board  of  trustees  of  the  Leland  Stanford  Junior  University, 
as  such,  or  in  the  name  of  the  institution,  or  by  other  intelli- 
gible designation  of  the  trustees  or  of  the  institution  may 
receive  property,  real  or  personal,  and  wherever  situated, 
by  gift,  grant,  devise,  or  bequest,  for  the  benefit  of  the  in- 
stitution, or  of  any  department  thereof,  and  such  property, 
unless  otherwise  provided,  shall  be  held  by  the  trustees  of 
the  Leland  Stanford  Junior  University  upon  the  trusts  pro- 
vided for  in  the  grant  founding  the  university,  and  amend- 
ments thereof,  and  grants,  bequests,  and  devises  supple- 
mentary thereto.  The  legislature,  by  special  act,  may  grant 
to  the  trustees  of  the  Leland  Stanford  Junior  University 
corporate  powers  and  privileges,  but  it  shall  not  thereby 
alter  their  tenure,  or  limit  their  powers  or  obligations  as 
trustees.  All  property  now  or  hereafter  held  in  trust  for 
the  founding,  maintenance,  or  benefit  of  the  Leland  Stan- 
ford Junior  University,  or  of  any  department  thereof,  may 
be  exempted  by  special  act  from  state  taxation,  and  all 
personal  property  so  held,  the  Palo  Alto  farm  as  described 
in  the  endowment  grant  to  the  trustees  of  the  university, 
and  all  other  real  property  so  held  and  used  by  the  uni- 
versity for  educational  purposes  exclusively,  may  be  simi- 
larly exempted  from  county  and  municipal  taxation ;  pro- 
vided, that  residents  of  California  shall  be  charged  no  fees 
for  tuition  unless  such  fees  be  authorized  by  act  of  the  legis- 
lature.    (Amendment  adopted  November  6,  1900.) 

The  California  School  of  Mechanical  Arts. 

Sec.  11.  All  property  now  or  hereafter  belonging  to 
"The  California  School  of  Mechanical  Arts,"  an  institution 
founded  and  endowed  by  the  late  James  Lick  to  educate 
males  and  females  in  the  practical  arts  of  life,  and  incor- 
porated under  the  laws  of  the  state  of  California,  November 
twenty-third,  eighteen  hundred  and  eighty-five,  having  its 


363  EDUCATION.  Art.  IX,  §§  12,  13 

school  buildings  located  in  the  city  and  county  of  San 
Francisco,  shall  be  exempt  from  taxation.  The  trustees  of 
said  institution  must  annually  report  their  proceedings  and 
financial  accounts  to  the  governor.  The  legislature  may 
modify,  suspend,  and  revive  at  will  the  exemption  from 
taxation  herein  given,  (Amendment  adopted  November  6, 
1900.) 

The  California  Academy  of  Sciences. 

Sec.  12.  All  property  now  or  hereafter  belonging  to  the 
"California  Academy  of  Sciences,"  an  institution  for  the  ad- 
vancement of  science  and  maintenance  of  a  free  museum,  and 
chiefly  endowed  by  the  late  James  Lick,  and  incorporated  un* 
der  the  laws  of  the  state  of  California,  January  sixteenth, 
eighteen  hundred  and  seventy-one,  having  its  buildings 
located  in  the  city  and  county  of  San  Francisco,  shall  be 
exempt  from  taxation.  The  trustees  of  said  institution 
must  annually  report  their  proceedings  and  financial  ac- 
counts to  the  governor.  The  legislature  may  modify,  sus- 
pend, and  revive  at  will  the  exemption  from  taxation  herein 
given.  (New  section  added  by  amendment  approved  No- 
vember 8,  1904.) 

Cogswell  Polytechnical  Colleg'e. 

Sec.  13.  All  property  now  or  hereafter  belonging  to  the 
Cogswell  Polytechnical  College,  an  institution  for  the  ad- 
vancement of  learning,  incorporated  under  the  laws  of  the 
state  of  California,  and  having  its  building  located  in  the 
city  and  county  of  San  Francisco,  shall  be  exempt  from 
taxation.  The  trustees  of  said  institution  must  annually 
report  their  proceedings  and  financial  accounts  to  the 
governor.  The  legislature  may  modify,  suspend,  and  re- 
vive at  will  the  exemption  from  taxation  herein  given. 
(New  section  added  by  amendment  adopted  November  6, 
1906.) 


Art.  X,  §§1-3         CONSTITUTION  OF  1879.  364 

ARTICLE  X. 

STATE  INSTITUTIONS  AND  PUBLIC  BUILDINGS. 

§   1.  State  prison  directors,  appointment  and  term  of  office. 

§  2.  Authority  and  duties  of. 

§  3.  Power  of  appointment  of  employees. 

§  4.  Allowance  for  expenses. 

§  5.  Powers  and  duties  to  be  regulated  by  law. 

§  6.  Convict  labor  to  be  regulated. 

State  prisan  directors,  appointment  and  term  of  office. 

Section  1.  There  shall  be  a  state  board  of  prison  di- 
rectors, to  consist  of  five  persons,  to  be  appointed  by  the 
governor,  with  the  advice  and  consent  of  the  senate,  who 
shall  hold  office  for  ten  years,  except  that  the  first  appointed 
shall,  in  such  manner  as  the  legislature  may  direct,  be  so 
classified  that  the  term  of  one  person  so  appointed  shall 
expire  at  the  end  of  each  two  years  during  the  first  ten 
years,  and  vacancies  occurring  shall  be  filled  in  like  manner. 
The  appointee  to  a  vacancy,  occurring  before  the  expiration 
of  a  term,  shall  hold  office  only  for  the  unexpired  term  of 
his  predecessor.  The  governor  shall  have  the  power  to  re- 
move either  of  the  directors  for  misconduct,  incompetency, 
or  neglect  of  duty  after  an  opportunity  to  be  heard  upon 
written  charges, 

PRISON  DIRECTORS. — Under  this  section  the  governor  has  au- 
thority to  make  an  investigation  into  the  conduct  of  the  state  board 
of  prison  directors  with  a  view  of  removing  them  from  office.  (Chap- 
man V.  Stoneman,  63  Cal,  490.) 

Authority  and  duties  of. 

Sec.  2.  The  board  of  directors  shall  have  the  charge  and 
superintendence  of  the  state  prisons,  and  shall  possess  such 
powers,  and  perform  such  duties,  in  respect  to  other  penal 
and  reformatory  institutions  of  the  state,  as  the  legislature 
may  prescribe. 

Power  of  appointment  of  employees. 

Sec.  3.  The  board  shall  appoint  the  warden  and  clerk, 
and  determine  the  other  necessary  officers  of  the  prisons. 
The  board  shall  have  power  to  remove  the  wardens  and 


a 

1 


365     STATE  INSTITUTIONS  AND  PUBLIC  BUILDINGS.     Art.  X,  §  §  4-6 

clerks  for  misconduct,  incompetency,  or  neglect  of  duty. 
All  other  officers  and  employees  of  the  prisons  shall  be  ap- 
pointed by  the  warden  thereof,  and  be  removed  at  his 
pleasure. 

Allowance  for  expenses. 

Sec.  4.  The  members  of  the  board  shall  receive  no  com- 
pensation other  than  reasonable  traveling  and  other  ex- 
penses incurred  while  engaged  in  the  performance  of  official 
duties,  to  be  audited  as  the  legislature  may  direct. 

COMPENSATION. — An  act  allowing  the  state  prison  directors  mile- 
age and  "one  hundred  dollars  for  other  expenses"  is  in  conflict  with 
this  section,  since  the  legislature  is  not  authorized  to  audit  the  ex- 
penses, but  is  directed  to  provide  how  and  before  what  tribunal  or 
board  the  expenses  shall  be  audited.  (People  v.  Chapman,  61  Cal. 
262.) 

Powers  and  duties  to  be  regulated  by  law. 

Sec.  5.  The  legislature  shall  pass  such  laws  as  may  be 
necessary  to  further  define  and  regulate  the  powers  and 
duties  of  the  board,  wardens,  and  clerks,  and  to  carry  into 
effect  the  provisions  of  this  article. 

Convict  labor  to  be  regulated. 

Sec.  6.  After  the  first  day  of  January,  eighteen  hundred 
and  eighty-two,  the  labor  of  convicts  shall  not  be  let  out  by 
contract  to  any  person,  copartnership,  company,  or  corpo- 
ration, and  the  legislature  shall,  by  law,  provide  for  the 
working  of  convicts  for  the  benefit  of  the  state. 


Art.  XI,  §  1  CONSTITUTION  OF  187*J.  366 

ARTICLE  XL 

CITIES,  COUNTIES,  AND  TOWNS. 

§     1.  Counties  as  subdivisions  of  the  state. 

§     2.  Removal  of  county  seats. 

§     3,  New  counties,  establishment  of. 

9     4.  County  governments  to  be  uniform,  under  general  laws. 

§     5.  Boards  of  supervisors,  election  and  appointment  of. 

§     6.  Municipal  corporations  to  be   formed  under  general  laws. 

§     7.  City  and  county  governments  may  be  consolidated. 

§     7^.  Freeholders'  charters  for  counties. 

§     8.  City  or  city  and  county  charters,  how  framed  and  ratified. 

§     8^.  City  or  city  and  county  charters,  to  contain  what. 

§     8a.  Panama-Pacific  International  Exposition. 

§     9.  Compensation  of  officers. 

§  10.  State  taxes,  no  release  or  discharge  from, 

§  11.  Local  police,  sanitary,  and  other  regulations  may  be  enforced. 

§  12.  Assessment  and  collection  of  taxes. 

§  13.  Powers  not  to  be  delegated  to  special  commission,  etc. 

§  13J.  Payment  of  bonds. 

§  14.  Inspection  officers,  appointment  of. 

§  15.  Private  property  not  liable  for  corporate  debt  of  municipality. 

§  16.  Moneys,  etc.,  to  be  deposited  with  treasurer, 

§  16J.  Deposit   of  public  moneys. 

§  17.  Making  profit  out  of  public  funds  a  felony. 

§  18.  Eestriction  on  power  to  incur  indebtedness. 

§  19.  Municipal  ownership  of  public  utilities. 

Counties  as  subdivisions  of  the  state. 

Section  1.  The  several  counties,  as  they  now  exist,  are 
hereby  recognized  as  legal  subdivisions  of  this  state. 

COUNTIES. — The  people  of  a  county  are  not  a  corporation,  nor  can 
they  sue  or  be  sued,  but  the  county  itself  is  a  corporation  and  the 
proper  party  plaintiff.     (People  v.  Myers,  15  Cal.  33.) 

To  constitute  a  county  something  more  is  required  than  a  law  de- 
fining its  boundaries.  A  local  government  must  be  provided.  (People 
V.  McGuire,  32  Cal.  140.) 

A  county  is  a  part  of  the  state  government,  and  cannot  be  sued 
without  the  consent  of  the  state.  (Sharp  v.  Contra  Costa  County,  34 
Cal.  284.) 

The  consolidated  city  and  county  of  San  Francisco  is  included  in 
the  designation  "county."  (Kahn  v,  Sutro,  114  Cal.  316,  33  L.  R.  A. 
620,  46  Pac.  87.) 

At  common  law  an  action  did  not  lie  against  a  county;  and  this  was 
the  law  of  this  state  until  the  legislature  gave  that  right  in  1854. 
(Gilman  v.  Contra  Costa  County,  8  Cal.  52,  68  Am.  Dec.  290.) 

The  board  of  supervisors  of  a  county  is  not  the  proper  party  de- 
fendant in  an  action  upon  a  claim  against  the  county.  (Hastings  v. 
San  Francisco,  18  Cal.   49.) 


367  CITIES,    COUNTIES    AND    TOWNS.      Art.  XI,  §§  2,  3 

Counties   as   municipal  corporations.     See  note,   Ann.   Cas.   1914C, 

968. 
Nature  of  counties.     See  7  R.  C.  L.,  §  3,  p.  923. 
Distinction  between  counties  and  municipal  corporations.     See   7 

E.  C.  L.,  §  5,  p.  925. 

Removal  of  county  seats. 

Sec.  2.  No  county  seat  shall  be  removed  unless  two-thirds 
of  the  qualified  electors  of  the  county,  voting  on  the  proposi- 
tion at  a  general  election,  shall  vote  in  favor  of  such  re- 
moval. A  proposition  of  removal  shall  not  be  submitted  in 
the  same  county  more  than  once  in  four  years. 

COUNTY  SEATS. — The  legislature  may  delegate  the  power  to  the 
voters  of  a  county  to  select  a  county  seat.  (Upham  v.  Sutter  County 
Supervisors,  8  Cal.  378.) 

County  seat.     See  7  E.  C.  L.,  §  12,  p.  934. 

New  counties,  establishment  of. 

Sec.  3.  The  legislature,  by  general  and  uniform  laws, 
may  provide  for  the  alteration  of  county  boundary  lines, 
and  for  the  formation  of  new  counties ;  provided,  however, 
that  no  new  county  shall  be  established  which  shall  reduce 
any  county  to  a  population  of  less  than  twenty  thousand ; 
nor  shall  a  new  county  be  formed  containing  a  less  popula- 
tion than  eight  thousand;  nor  shall  any  line  thereof  pass 
within  five  miles  of  the  exterior  boundary  of  the  city  or 
town  in  which  the  county  seat  of  any  county  proposed  to 
be  divided  is  situated.  Every  county  which  shall  be  en- 
larged or  created  from  territory  taken  from  any  other 
county  or  counties,  shall  be  liable  for  a  just  proportion  of 
the  existing  debts  and  liabilities  of  the  county  or  counties 
from  which  such  territory  shall  be  taken.  (Amendment 
adopted  November  8,  1910.) 

[AMENDMENT  OF  1894.] 
Siec.  3.  The  legislature,  by  general  and  uniform  laws,  may  pro- 
vide for  the  formation  of  new  counties;  provided,  however,  that 
no  new  county  shall  be  established  which  shall  reduce  any  county 
to  a  population  of  less  than  eight  thousand;  nor  shall  a  new  county 
be  formed  containing  a  less  population  than  five  thousand;  nor 
shall  any  line  thereof  pass  within  five  miles  of  the  county  seat  of 
an}'  county  proposed  to  be  divided.  Every  county  which  shall  be 
enlarged  or  created  from  territory  taken  froirt  any  other  county  or 


Art.  XI,  §  3  CONSTITUTION  OF  1879.  368 

counties,  shall  be  liable  for  a  just  proportion  of  the  existing  debts 
and  liabilities  of  the  county  or  counties  from  which  such  territory 
shall  be  taken.     (Amendment  adopted  November  6,  1894.) 

[ORIGINAL  SECTION.] 
Sec.  3.  No  new  county  shall  be  established  which  shall  reduce 
any  county  to  a  population  of  less  than  eight  thousand;  nor  shall 
a  new  county  be  formed  containing  a  less  population  than  five 
thousand;  nor  shall  any  line  thereof  pass  within  five  miles  of  the 
county  seat  of  any  county  proposed  to  be  divided.  Every  county 
which  shall  be  enlarged  or  created  from  territory  taken  from  any 
other  county  or  counties,  shall  be  liable  for  a  just  proportion  of 
existing  debts  and  liabilities  of  the  county  or  counties  from  which 
such  territory  shall  be  taken. 

NEW  COUNTIES. — The  legislature,  except  as  restrained  by  consti- 
tutional limitations,  may  change  the  boundaries  of  counties,  consoli- 
date two  or  more  into  one,  or  divide  and  create  new  counties  out  of 
the  territory  of  one  or  more  existing  ones;  and  may  make  any  provi- 
sion it  sees  fit  as  to  a  division  of  the  property  and  debts  of  such  coun- 
ties.    (Los  Angeles  Co.  v.  Orange  Co.,  97  Cal.  329,  32  Pac.  316.) 

A  newly  created  county  does  not  become  a  county  until  its  organiza- 
tion is  perfected  by  the  election  of  its  officers.  (People  v.  McGuire, 
32  Cal.  140.) 

The  legislature  cannot,  in  organizing  a  new  county,  change  the  term 
of  the  judges  as  fixed  by  the  Constitution.  (People  v,  Templeton,  12 
Cal.  394.) 

The  last  clause  of  this  section  relates  only  to  the  indebtedness  of 
fhe  county,  and  does  not  require  any  division  of  the  assets  of  the  old 
county.     (Los  Angeles  Co.  v.  Orange  Co.,  97  Cal.  329,  32  Pac.  316.) 

The  legislature  may  fix  the  time  at  which  to  properly  determine 
what  would  be  a  "just  proportion"  of  the  debts  and  liabilities  to  be 
assumed  by  the  new  county.  (Los  Angeles  Co.  v.  Orange  Co.,  97  Cal. 
329,  32  Pac.  316.) 

The  question  of  the  liability  of  the  new  and  old  counties  is  purely 
legislative.  (Riverside  Co.  v.  San  Bernardino  Co.,  134  Cal.  517,  66 
Pac.  788.) 

In  creating  a  new  county,  it  is  for  the  legislature  to  determine  how 
the  debts  and  property  of  the  county  shall  be  divided  and  appor- 
tioned, and  if  the  commissioners  fail  by  mistake  to  divide  a  claim 
existing  in  favor  of  a  county  against  the  state,  the  remedy  for  such 
failure  is  legislative,  and  not  judicial,  and  the  courts  have  no  jurisdic- 
tion of  an  action  by  the  new  county  to  recover  its  proportion  of  such 
claim  when  paid  by  the  state  to  the  county  from  which  the  new 
county  was  formed.  (Orange  Co.  v.  Los  Angeles  Co.,  114  Cal.  390, 
46  Pac.  173.) 

The  courts  have  no  power  to  determine  what  is  a  "just  proportion" 
under  this  section.     (Tulare  Co.  v.  Kings  Co.,  117  Cal.  195,  49  Pac.  8.) 

Upon  the  division  of  a  county,  if  no  provision  is  made  by  law  for 
any  change  in  the  custody  of  the  swamp-land  fund,  no  action  will  lie 
on  behalf  of  the  new  county  to  recover  a  share  of  such  fund,  but  the 
legislature  is  the  appropriate  and  only  source  of  relief.  (Kings  Co.  v. 
Tulare  Co.,  119  Cal.  509,  51  Pac.  866.) 


369  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  3 

Where  no  provision  is  made  as  to  the  property  and  assets,  the  old 
county  will  be  entitled  to  retain  all  public  property  and  assets,  except 
such  buildings  and  structures  as  lie  within  the  limits  of  the  new,  and 
will  be  liable  for  its  prior  obligations.  (County  of  Colusa  v.  Glenn 
Co.,  ]24  Cal.  498,  57  Pae.  477.) 

When  a  new  county  is  organized  out  of  a  part  of  the  territory  be- 
fore constituting  another  county,  the  claim  of  the  old  against  the  new 
county  for  payment  of  the  new  county's  proportion  of  the  debts  of  the 
old  county  is  of  an  equitable  nature  only,  and  requires  legislation  to 
enable  the  old  county  to  enforce  it.  (Beals  v.  Board  of  Supervisors, 
28  Cal.  449.) 

The  legislature  may  require  a  new  county  to  pay  interest  upon  a 
debt  due  to  the  old.     (Beals  v.  Board  of  Supervisors,  35  Cal.  624.) 

If  an  equitable  claim  exists  in  favor  of  one  county  against  another 
arising  out  of  the  erection  of  a  new  county  out  of  territory  taken 
in  part  from  one  county,  the  legislature  may  compel  the  board  of  su- 
pervisors of  the  county  indebted  to  levy  a  special  tax  to  pay  the  same. 
(People  V.  Board  of  Supervisors,  26  Cal.  641.) 

Upon  the  division  of  a  county,  with  an  agreed  basis  of  apportion- 
ment of  assets,  which  did  not  include  prior  unpaid  railroad  taxes,  the 
validity  of  which  were  disputed,  and  which  were  subsequently  reas- 
sessed to  each  of  the  counties  upon  the  basis  of  their  respective  rail- 
road mileage,  the  original  county  may  recover  from  the  new  county 
at  least  the  difference  between  the  amount  received  by  the  old  county 
and  the  amount  it  would  have  received  upon  the  agreed  basis  of  ap- 
portionment. (San  Diego  Co.  v.  Riverside  Co.,  125  Cal.  495,  58  Pae. 
81.) 

The  prohibition  against  uniting  parts  of  different  counties  in  form- 
ing any  legislative  district,  contained  in  section  6  of  article  IV  of  the 
Constitution,  limits  the  power  of  the  legislature  in  framing  the  gen- 
eral law  for  the  decennial  apportionment,  but  does  not  affect  its 
power,  included  in  the  general  grant  of  legislative  power  contained  in 
section  1  of  article  IV,  to  alter  county  boundaries  from  time  to  time 
as  it  may  deem  best.     (Wheeler  v.  Herbert,  152  Cal.  224,  92  Pae.  353.) 

The  legislature  is  not  prohibited  from  changing  by  special  act  the 
boundaries  between  two  or  more  counties,  leaving  all  of  them  existing 
as  political  subdivisions  of  the  state  as  before.  Such  power  was 
vested  in  the  legislature  before  the  amendment  of  1894,  and  the 
amendment  did  not  change  the  section  in  this  respect.  (Wheeler  v. 
Herbert,  152  Cal.  224,  92  Pae.  353.) 

New  counties,  their  relation  and  that  of  their  officers  to  old  coun- 
ties.    See  note,  20  Am.  St.  Rep.  676. 
Legal  results  of  a  change  of  county  boundaries  and  of  the  erec- 
tion of  a  new  county  out  of  part  of  an  old  one.     See  note,  85 
Am.  Dec.  100. 

Time  of  apportionment  of  assets  and  liabilities  of  counties,  towns 

or  municipalities  in  case  of  division  of  territory  by  legislature. 

See  note,  18  Ann.  Cas.  324. 
.Validity  of  statute   creating  new   county  only  on   ratification   of 

voters   within    territory   affected.     See   note,    Ann.   Cas.   1914C, 

626. 

Constitution — 24 


iA'rt.  XI,  §  4  CONSTITUTION  OF  1879.  370 

Alteration  and  change  of  boundaries.     See  7  R.  C.  L.,  §§  7-10,  pp. 

928-933. 
Apportionment  of  liabilities.     See  7  R.  C.  L.,  §  10,  p.  932. 

County  governments  to  be  uniform,  under  general  laws. 

Sec.  4.  The  legislature  shall  establish  a  system  of  county 
governments  which  shall  be  uniform  throughout  the  state ; 
and  by  general  laws  shall  provide  for  township  organiza- 
tion, under  which  any  county  may  organize  whenever  a 
majority  of  the  qualified  electors  of  such  county,  voting  at 
a  general  general  election,  shall  so  determine ;  and,  when- 
ever a  county  shall  adopt  township  organization,  the  as- 
sessment and  collection  of  the  revenue  shall  be  made,  and 
the  business  of  such  county  and  the  local  affairs  of  the  sev- 
eral townships  therein  shall  be  managed  and  transacted  in 
the  manner  prescribed  by  such  general  laws. 

COUNTY  GOVERNMENT.— The  "system"  or  plan  for  the  govern- 
ment of  the  several  counties  must  be  uniform  so  that  its  several  parts 
shall  be  applicable  to  each  county.  (Welsh  v.  Bramlet,  98  Cal.  219,  33 
Pac.  66.) 

This  section  does  not  deprive  the  legislature  of  the  power  to  pass 
an  act  requiring  boards  of  supervisors  of  certain  named  counties  to 
issue  and  sell  county  bonds  for  the  improvement  of  roads.  (People  v. 
Board  of  Supervisors,  50  Cal.  561.) 

A  provision  of  a  County  Government  Act  that  in  counties  of  a  cer- 
tain class  county  licenses  collected  in  cities  shall  be  paid  into  the 
treasuries  of  such  cities  for  street  improvements  is  in  violation  of 
this  section.  (San  Luis  Obispo  County  v.  Graves,  84  Cal.  71,  23  Pac. 
1032.) 

A  provision  of  the  County  Goverment  Act  that  in  all  counties  of 
one  particular  class  certain  additional  fees  shall  be  collected  for  filing 
the  inventory  in  estates  of  deceased  persons  is  violative  of  this  sec- 
tion.    (Bloss  v.  Lewis,  109  Cal.  493,  41  Pac.  1081.) 

The  provisions  of  the  County  Government  Act  of  1893  empowering 
certain  of  the  county  officers  in  counties  of  one  particular  class  to 
appoint  a  certain  number  of  deputies,  whose  salaries  are  fixed  by  the 
act  and  made  payable  out  of  the  county  treasury,  is  valid,  although 
in  other  counties  the  principals  must  pay  the  salaries  of  their  depu- 
ties. (Tulare  Co.  v.  May,  118  Cal.  303,  50  Pac.  427;  Freeman  v.  Bar- 
uum,  131  Cal.  386,  82  Am.  St.  Rep.  355,  63  Pac.  69L  Welsh  v.  Bram- 
let, 98  Cal.  219,  33  Pac.  66;  Walser  v.  Austin,  104  Cal.  128,  37  Pac. 
869,  overruled.) 

The  location  of  county  lines  is  a  political  question  to  be  settled  by 
the  legislature,  and  subject  to  change  from  time  to  time  as  the  legis- 
lature may  direct.  (Trinity  County  v.  Mendocino  Co.,  151  Cal.  279, 
90  Pac.  685.) 


1 


371  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  5 

TOWNSHIP  GOVERNMENT.— The  provision  of  this  section  as  to 
town  governments  is  not  self-executing,  and  the  legislature  cannot 
confer  upon  the  inhabitants  of  a  certain  territory,  who  have  no  town 
organization,  the  power  to  make  laws.  (Ex  parte  Wall,  48  Cal.  279, 
17  Am.  Rep.  425.) 

The  township  government  established  by  the  County  Government 
Act  is  not  the  township  government  mentioned  in  this  section.  (Lon- 
gan  V.  Solano  Co.,  65  Cal.  122,  3  Pac.  463;  Ex  parte  Wall,  48  Cal.  279, 
17  Am.  Rep.  425.) 

The  legislature  never  has  established  towns  within  the  meaning  of 
the  Constitution.     (Ex  parte  Wall,  48  Cal.  279,  17  Am.  Rep.  425.) 

Boards  of  supervisors,  election  and  appointment  of. 

Sec.  5.  The  legislature,  by  general  and  uniform  laws, 
shall  provide  for  the  election  or  appointment,  in  the  several 
counties,  of  boards  of  supervisors,  sheriffs,  county  clerks, 
district  attorneys,  and  such  other  county,  township,  and  mu- 
nicipal officers  as  public  convenience  may  require,  and  shall 
prescribe  their  duties  and  fix  their  terms  of  office.  It  shall 
regulate  the  compensation  of  all  such  officers,  in  proportion 
to  duties,  and  may  also  establish  fees  to  be  charged  and 
collected  by  such  officers  for  services  performed  in  their 
respective  offices,  in  the  manner  and  for  the  uses  provided 
by  law,  and  for  this  purpose  may  classify  the  counties  by 
population ;  and  it  shall  provide  for  the  strict  accountability 
of  county  and  township  officers  for  all  fees  which  may  be 
collected  by  them,  and  for  all  public  and  municipal  moneys 
which  may  be  paid  to  them,  or  officially  come  into  their  pos- 
session. It  may  regulate  the  compensation  of  grand  and 
trial  jurors  in  all  courts  within  the  classes  of  counties  herein 
permitted  to  be  made;  such  compensation,  however,  shall 
not,  in  any  class,  exceed  the  sum  of  three  dollars  per  day 
and  mileage.     (Amendment  adopted  November  3,  1908.) 

[ORIGIXAL  SECTION.] 
Sec.  5.  The  legislature,  by  general  and  uniform  laws,  shall  pro- 
vide for  the  election  or  appointment,  in  the  several  counties,  of 
boards  of  supervisors,  sheriffs,  county  clerks,  district  attorneys,  and 
such  other  county,  township,  and  municipal  officers  as  public  con- 
venience ma}'  require,  and  shall  prescribe  their  duties,  and  fix  their 
terms  of  office.  It  shall  regulate  the  compensation  of  all  such  offi- 
cers, in  proportion  to  duMes,  and  for  this  purpose  may  classify  the 
counties  hj  population;  and  it  shall  provide  for  the  strict  account- 
ability of  county  and  township  officers  for  all  fees  which  may  be 
collected  by  them,  and  for  all  public  and  municipal  moneys  which 
may  be  paid  to  them,  or  officially  come  into  their  possession. 


Art.  XI,  §  5  CONSTITUTION  OF  1879.  372 

COUNTY  OFFICERS. — Under  the  former  Constitution  it  was  held 
that  the  provision  requiring  a  uniform  system  of  county  government 
was  merely  directory.  (People  v.  Board  of  Supervisors,  33  Cal.  487.) 
But  the  provision  of  the  present  Constitution  is  mandatory,  gives 
to  the  legislature  exclusive  authority  to  provide  for  the  officers  in 
the  several  counties,  and  to  fix  their  terms  and  duties,  provides  that 
this  must  be  done  "hj  general  and  uniform  laws,"  and  that  such  laws 
must  be  uniformly  applicable  to  all  the  counties  of  the  state. 
(Welsh  V.  Bramlet,  98  Cal.  219,  33  Pac.  66.) 

The  legislature  cannot  delegate  the  power  given  it  by  this  section. 
(People  V.  Wheeler,  136  Cal.  652,  69  Pac.  435;  City  of  Woodland  v. 
Leech,  20  Cal.  App.  15,  127  Pac.  1040.) 

A  statute  providing  for  a  system  of  county  government,  which  in 
its  terms  is  limited  to  a  portion  of  the  state,  is  in  violation  of  this 
soction.     (Hale  v.  McGettigan,  114  Cal.  112,  45  Pac.  1049.) 

Under  this  provision  of  the  Constitution,  and  the  general  laws 
therein  provided  for,  the  burden  of  prosecuting  offenses  against  state 
laws  and  county  ordinances  is  to  be  borne  by  the  state  or  county  and 
cannot  be  imposed  upon  a  city  because  such  prosecutions  are  to  be 
conducted  within  its  limits.  (Fleming  v.  Hance,  153  Cal.  162,  94  Pac. 
620.) 

The  power  of  the  legislature  to  prescribe  the  respective  duties  of 
the  various  classes  of  county,  township  and  municipal  officers,  and  to 
regulate  their  compensation,  cannot  be  doubted.  (County  of  San  Luis 
Obispo  V.  Murphy,  162  Cal.  588,  Ann.  Cas.  1913D,  712,  123  Pac.  808.) 
Election  of  officers. — It  seems  that  under  this  section  the  legislature 
has  power  to  provide  that  all  county  officers  shall  be  appointed  instead 
of  elected.     (Barton  v.  Kalloch,  56  Cal.  95.) 

The  Constitution  docs  not  fix  the  term  of  these  officers,  but  merely 
directs  that  the  legislature  shall  provide  for  their  election  by  the 
people  and  shall  fix  by  law  the  duties  and  compensation.  (People  v. 
Brown,  16  Cal.  441.) 

When  the  Constitution  declares  an  office  to  be  elective  it  cannot  be 
filled  in  any  other  mode,  but  when  it  has  been  filled  by  election,  the 
legislature  may  extend  the  term  of  the  incumbent.  (Christy  v.  Board 
of  Supervisors,  39  Cal.  3.) 

There  is  nothing  in  the  Constitution  which  requires  that  a  person 
elected  district  attorney  shall  be  admitted  to  the  bar.  (People  v. 
Dorsey,  32  Cal.  296.) 

The  sheriff  as  such  cannot  perform  the  duties  of  tax  collector. 
(Lathrop  v.  Brittain,  30  Cal.  680.) 

The  legislature  is  not  prohibited  from  creating  more  than  one  reve- 
nue district  in  a  county,  and  providing  for  the  election  of  assessor 
and  tax  collector  in  each  district.  (People  v.  Central  Pac.  R.  R.  Co., 
43  Cal.  398.) 

An  act  authorizing  the  district  attorney  of  a  county  to  bring  suit 
in  the  name  of  the  people  to  recover  delinquent  taxes  does  not  inter- 
fere with  the  constitutional  duties  of  the  tax  collector.  (People  v. 
Central  Pac.  R.  R.  Co.,  43  Cal.  398.) 

The  term  "assessor"  does  not  necessarily  mean  an  officer  whose  val- 
uations are  final.     (Savings  &  Loan  Soc.  v.  Austin,  46  Cal.  415.) 


373  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  5 

Compensation. — This  section  only  authorizes  one  mode  of  fixing  the 
compensation  of  oflScers,  and  that  is  to  adjust  the  compensation  in 
accordance  with  their  respective  duties,  under  a  classification  of  coun- 
ties by  population  made  for  this  purpose.  (Knight  v.  Martin,  128 
Cal.  245,  60  Pac.  849;  Dwyer  v.  Parker,  115  Cal.  544,  47  Pac.  372.) 

The  legislature  has  power  to  provide  for  but  one  salary  as  an  inci- 
dent to  a  county  office.     (Tout  v.  Blair,  3  Cal.  App.  180,  84  Pac.  671.) 

The  legislature  has  power  to  provide  that  the  salary  attached  to  a 
public  office  shall  be  an  incident,  not  to  the  title  of  the  office,  but  to- 
its  occupation  and  exercise.  (Tout  v.  Blair,  3  Cal.  App.  180,  84  Pac. 
671;  Merkley  v.  Williams,  3  Cal.  App.  268,  84  Pac.  1015.) 

The  sole  purpose  of  the  classification  provided  for  by  this  section 
is  of  regulating  the  compensation  of  the  officers  in  proportion  to  their 
duties.  A  classification  for  any  other  purpose  is  void.  (San  Luis 
Obispo  County  v.  Graves,  84  Cal.  71,  23  Pac.  1032;  San  Francisco  v. 
Broderick,  125  Cal.  188,  57  Pac.  887;  Turner  v.  Siskiyou  Co.,  109  Cal. 
332,  42  Pac.  434.*) 

The  salaries  and  fees  allowed  by  the  County  Government  Act  are 
in  full  compensation  for  all  services,  and  the  fees  collected  by  the 
treasurer  for  collecting  the  collateral  inheritance  tax  cannot  be  re- 
tained by  him  for  his  own  use.  (San  Diego  County  v.  Schwartz,  145 
Cal.  49,  78  Pac.  231.) 

An  act  creating  a  class  of  counties  and  designating  it  by  popula- 
tion arbitrarily,  and  without  reference  to  the  classification  contained 
in  the  general  law,  is  in  violation  of  this  section.  (San  Francisco  v. 
Broderick,  125  Cal.  188,  57  Pac.  887.) 

A  provision  of  the  fee  bill  allowing  justices  of  the  peace  a  certain 
portion  of  the  fees  collected  by  them  as  their  compensation,  irrespec- 
tive of  the  classification  contained  in  the  County  Government  Act,  is 
invalid.  (Dwyer  v.  Parker,  115  Cal.  544,  47  Pac.  372;  Reid  v. 
Groezinger,  115  Cal.  551,  47  Pac.  371.) 

An  act  allowing  justices  of  the  peace  different  fees  for  the  same 
services  in  townships  classified  according  to  population  is  in  violation 
of  this  section.     (Tucker  v.  Barnum,  144  Cal.  266,  77  Pac.  919.) 

The  act  of  1893  providing  a  special  method  of  collecting  fees  in 
cities  and  counties  of  over  one  hundred  thousand  inhabitants  is  in 
violation  of  this  provision.  (Rauer  v.  Williams,  118  Cal.  401,  50  Pac. 
691.) 

The  legislature  is  not  directed  to  regulate  the  compensation  in  ac- 
cordance with  the  classification  of  the  counties  by  population,  but  in 
proportion  to  duties,  and  as  a  means  of  doing  that  it  is  authorized  to 
classify  the  counties  according  to  population.  (Longan  v.  Solano  Co., 
65  Cal.  122,  3  Pac.  463;  Welsh  v.  Bramlet,  98  Cal.  219,  33  Pac.  66.) 

What  compensation  of  an  officer  should  be  deemed  "in  proportion 
to  his  duties"  is  a  matter  of  fact  to  be  ascertained  and  determined 
by  the  legislature,  and  not  by  the  courts.  (Green  v.  Fresno  Co.,  95 
Cal.  329,  30  Pac.  544.) 


*In  considering  the  subject  of  classification,  it  must  be  remembered 
that,  while  counties  can  only  be  classified  for  the  purpose  above  men- 
tioned, cities  and  towns  may  be  classified  according  to  population  for 
any  purpose.     (See  note  to  next  section.) 


Art.  XI,  §  5  CONSTITUTION  OF  1879.  374 

This  section  does  not  prevent  the  legislature  from  allowing  county 
officers  the  fees  collected  in  lieu  of  salaries.  (San  Luis  Obispo  County 
V.  Darke,  76  Cal.  92,  18  Pac.  118;  Green  v.  Fresno  Co.,  9.5  Cal.  329, 
30  Pac.  544.     But  see  Kern  Co.  v.  Fay,  131  Cal.  547,  63  Pac.  857.) 

The  legislature  may  provide  that  some  county  officers  shall  receive 
fees  or  per  diem,  and  that  others  shall  receive  regular  salaries.  (Vail 
V.  San  Diego  Co.,  126  Cal.  35,  58  Pac.  392.) 

The  legislature  cannot  change  the  measure  of  compensation  of  offi- 
cers fixed  by  the  County  Government  Act  otherwise  than  by  amend- 
ment of  it,  preserving  the  standard  fixed  by  the  Constitution  of  the 
classification  of  counties  bj'  population  for  the  purpose  of  fixing  the 
compensation  of  officers.  (Kiernan  v.  Swan,  131  Cal.  410,  63  Pac. 
768.) 

A  law  fixing  the  compensation  of  officers  in  all  counties  of  a  certain 
class  is  valid.     (Summerland  v.  Bicknell,  111  Cal.  567,  44  Pac.  232.) 

The  duty  of  regulating  the  compensation  of  all  county  officers  in 
proportion  to  duties  cannot  be  delegated  to  boards  of  supervisors. 
(Dougherty  v.  Austin,  94  Cal.  601,  16  L.  E.  A.  161,  28  Pac.  834,  29 
Pac.  1092;  People  v.  Johnson,  95  Cal.  471,  31  Pac.  611.) 

The  provision  in  this  section  requiring  the  legislature  to  regulate 
and  fix  the  compensation  of  county  officers  in  proportion  to  dues,  does 
not  apply  to  offices  created  by  the  legislature  under  section  14  of 
this  article.     (Scott  v.  Boyle,  164  Cal.  321,  128  Pac.  941.) 

Classification. — There  is  no  limit  to  the  number  of  classes  of  coun- 
ties that  the  legislature  may  make.  (Longan  v.  Solano,  65  Cal.  122, 
3  Pac.  463.) 

The  legislature  can  only  classify  counties  for  the  purpose  of  fixing 
salaries  of  county  officers.  Official  reporters  of  the  superior  courts 
are  not  such  officers.      (Pratt  v.  Browne,  135  Cal.  649,  67  Pac.   1082.) 

The  legislature  may  classify  townships  as  well  as  counties  by  popu- 
lation for  the  purpose  of  regulating  the  compensation  of  township 
officers.  (Tucker  v.  Barnum,  144  Cal.  266,  77  Pac.  919;  McCauley  v. 
Culbert,  144  Cal.  276,  77  Pac.  923.  But  see  Sanchez  v.  Fordyce,  141 
Cal.  427,  75  Pac.  56.) 

The  provision  of  the  County  Government  Act  that,  when  the  popu- 
lation of  an  existing  county  shall  be  reduced  by  reason  of  the  crea- 
tion of  a  new  county  from  the  territory  thereof,  below  the  class  first 
assumed  under  that  act,  it  should  be  the  duty  of  the  supervisors  of 
such  county  to  designate  the  class  to  which  such  county  has  been 
reduced,  is  not  in  conflict  with  this  section.  (Kumler  v.  Board  of 
Supervisors,  103  Cal.  393,  37  Pac.  383.) 

The  courts  will  take  judicial  notice  of  the  population  of  cities  and 
towns  as  shown  by  the  United  States  census  returns.  (People  v. 
Wong  Wang,  92  Cal.  277,  28  Pac.  270;  People  v.  Williams,  64  Cal.  87, 
27  Pac.  939;  Welsh  v.  Bramlet,  98  Cal.  219,  33  Pac.  66.) 

A  county  of  a  particular  class  is  not  ips©  facto  made  a  county  of 
another  class  merely  by  the  effect  of  a  new  census,  but  it  remains  in 
its  original  class  until  reorganized  by  the  board  of  supervisors.  (Hull 
V.  Superior  Court,  63  Cal.  174,  per  McKinstry,  J.) 

As  to  when  a  city  of  one  class  passes  from  one  class  to  another, 
see  Ex  parte  Halsted,  89  Cal.  471,  26  Pac.  961. 


375  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  5 

The  legislature  has  no  power  to  arbitrarily  place  any  particular 
county  in  any  particular  class.  But  where  the  legislature  declares 
that  a  particular  newly  formed  county  shall  belong  to  a  particular 
class,  it  will  be  assumed  that  the  legislature  thereby  determined  the 
population  of  such  county.  (Sanders  v.  Sehorn,  98  Cal.  227,  33  Pac. 
58;  People  v.  McFadden,  81  Cal.  489,  15  Am.  St.  Eep.  66,  22  Pac.  851.) 

The  legislature  may  pass  a  law  regulating  the  compensation  of 
township  officers  in  counties  of  any  one  class.  (Johnso^n  v.  Gunn,  148 
Cal.  745,  84  Pac.  665.) 

Under  the  act  of  1901,  amending  the  County  Government  Act  and 
classifying  townships  according  to  population  as  fixed  by  the  last 
federal  census,  a  township  created  after  that  census  and  whose  popu- 
lation cannot  be  determined  thereby  is  not  governed  by  that  classi- 
fication.    (Chinn  v.  Gunn,  148  Cal.  755,  84  Pac.  669.) 

The  adjustment  of  compensation  of  justices  of  the  peace  by  salaries 
in  large  cities,  and  fees  in  smaller  cities,  towns  and  nonurban  com- 
munities proceeds  upon  intrinsic  differences  and  is  constitutional. 
(Summerfield  v.  Dow,  5  Cal.  App.  678,  91  Pac.  156.) 

The  power  of  the  legislature  to  classify  counties  by  population  is  a 
power  to  be  exercised  for  the  limited  purpose  of  enabling  the  compen- 
sation of  the  various  officers  to  be  fixed  and  adjusted.  (Payne  v. 
Murphy,  18  Cal.  App.  446,  123  Pac.  350.) 

Particular  a^s. — A  provision  of  the  County  Government  Act  con- 
ferring power  upon  the  supervisors  to  authorize  the  district  attorney 
cyf  any  county  to  appoint  an  assistant,  who  shall  receive  a  compensa- 
tion fixed  by  the  act,  is  void.  (Knight  v.  Martin,  128  Cal.  245,  60 
Pac.  849.) 

The  provision  of  the  County  Government  Act  of  1893,  empowering 
certain  officers  of  counties  of  one  class  to  appoint  a  certain  number 
of  deputies,  whose  salaries  are  fixed  by  the  act,  and  made  payable 
out  of  the  county  treasury,  is  valid,  although  in  other  counties  the 
principals  must  pay  the  salaries  of  their  deputies.  (Tulare  County 
V.  May,  118  Cal.  303,  50  Pac.  427.  Welsh  v.  Bramlet,  98  Cal.  219,  33 
Pac.  66;  Walser  v.  Austin,  104  Cal.  128,  37  Pac.  869,  overruled.) 

A  provision  of  the  County  Government  Act  providing  for  biennial 
election  of  county  officers  in  counties  of  one  particular  class  is  void. 
(Hale  V.  McGettigan,  114  Cal.  112,  45  Pac.  1049.) 

This  section  does  not  authorize  the  Primary  Election  Law  of  1895, 
which  is  expressly  confined  in  its  operation  to  counties  of  the  first 
and  second  class.     (Marsh  v.  Hanly,  111  Cal.  368,  43  Pac.  975.) 

This  section  does  not  authorize  the  collection  in  counties  of  one 
particular  class  of  a  percentage  upon  the  inventory  value  of  the  estate 
for  filing  the  inventory.     (Bloss  v.  Lewis,  109  Cal.  493,  41  Pac.  1081.) 

Section  726  of  the  Code  of  Civil  Procedure,  conferring  upon  the 
court  authority  to  appoint  commissioners  to  sell  mortgaged  property, 
does  not  violate  this  provision.  (McDermot  v.  Barton,  106  Cal.  194, 
39  Pac.  538.) 

The  provision  of  section  1770  of  the  Political  Code  as  to  the  com- 
pensation of  members  of  county  boards  of  education  is  valid.  (Thom 
v.  Los  Angeles  County,  136  Cal.  375,  69  Cal.  18.) 

The  board  of  supervisors  of  a  county  have  no  power  to  create  the 
office  of  license  tax  collector  for  the  county.     (El  Dorado  Co.  v.  Meiss. 


Art.  XI,  §  6  CONSTITUTION  OF  1879.  376 

100  Cal.  268,  34  Pac.  716;  Los  Angeles  Co.  v.  Lopez,  104  Cal.  257,  38 
Pac.  42.     People  v.  Ferguson,  65  Cal.  288,  4  Pac.  4,  overruled.) 

There  is  nothing  in  the  Constitution  prohibiting  the  legislature  from 
conferring  upon  the  boards  of  supervisors  of  one  county  the  power 
to  lay  out,  open,  and  maintain  a  road  in  another  county.  (People  v. 
Board  of  Suprs.,  33  Cal.  487.) 

The  provision  of  the  County  Government  Act  requiring  assessors  in 
counties  of  one  particular  class  to  pay  all  percentages  for  the  collec- 
tion of  poll  taxes  into  the  county  treasury  is  valid,  (Summerland  v. 
Bicknell,  111  Cal.  567,  44  Pac.  232.) 

Liability    of    county    for    expenses    of   jurors    during   trial.     See 
note,  17  Ann.  Cas.  1232. 

Municipal  corporations  to  be  formed  under  general  laws. 

Sec.  6.  Corporations  for  municipal  purposes  shall  not  be 
created  by  special  laws;  but  the  legislature  shall,  by  gen- 
eral laws,  provide  for  the  incorporation,  organization,  and 
classification,  in  proportion  to  population,  of  cities  and 
towns,  Avhich  laws  may  be  altered,  amended,  or  repraled; 
and  the  legislature  may,  by  general  laws,  provide  for  the 
performance  by  county  officers  of  certain  of  the  municipal 
functions  of  cities  and  towns  so  incorporated,  whenever  a 
majority  of  the  electors  of  any  such  city  or  town  voting  at 
a  general  or  special  election  shall  so  determine.  Cities  and 
towns  heretofore  organized  or  incorporated  may  become  or- 
ganized under  the  general  laAvs  passed  for  that  purpose, 
whenever  a  majority  of  the  electors  voting  at  a  general 
election  shall  so  determine,  and  shall  organize  in  conform- 
ity therewith.  Cities  and  towns  hereafter  organized  under 
charters  framed  and  adopted  by  authority  of  this  Constitu- 
tion are  hereby  empowered,  and  cities  and  towns  heretofore 
organized  by  authority  of  this  Constitution  may  amend 
their  charters  in  the  manner  authorized  by  this  Constitution 
so  as  to  become  likewise  empowered  hereunder,  to  make  and 
enforce  all  laws  and  regulations  in  respect  to  municipal  af- 
fairs, subject  only  to  the  restrictions  and  limitations  pro- 
vided in  their  several  charters,  and  in  respect  to  other  mat- 
ters they  shall  be  subject  to  and  controlled  by  general  laws. 
Cities  and  towns  heretofore  or  hereafter  organized  by  au- 
thority of  this  Constitution  may,  by  charter  provision  or 
amendment,  provide  for  the  performance  by  county  officers 
of  certain  of  their  municipal  functions,  whenever  the  dis- 


377  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  6 

charge  of  such  municipal  functions  by  county  officers  is  au- 
thorized by  general  laws  or  by  the  provisions  of  a  county 
charter  framed  and  adopted  by  authority  of  this  Constitu- 
tion.    (Amendment  adopted  November  3,  1914.) 

[AMENDMENT  OF  1896.] 
Sec.  6.  Corporations  for  municipal  purposes  shall  not  be  created 
by  special  laws;  but  the  legislature,  by  general  laws,  shall  provide 
for  the  incorporation,  organization,  and  classification,  in  proportion 
to  population,  of  cities  and  towns,  which  laws  may  be  altered, 
amended,  or  repealed.  Cities  and  towns  heretofore  organized  or 
incorporated  may  become  organized  under  such  general  laws  when- 
ever a  majority  of  the  electors  voting  at  a  general  election  shall 
so  determine,  and  shall  organize  in  conformity  therewith;  and 
cities  and  towns  heretofore  or  hereafter  organized,  and  all  charters 
thereof  framed  or  adopted  by  authority  of  this  Constitution,  ex- 
cept in  municipal  affairs,  shall  be  subject  to  and  controlled  by 
general  laws.     (Amendment  adopted  November  3,  1896.) 

[ORIGINAL  SECTION.] 
Sec.  6.  Corporations  for  municipal  purposes  shall  not  be  created 
by  special  laws;  but  the  legislature,  by  general  laws,  shall  provide 
for  the  incorporation,  organization,  and  classification,  in  proportion 
to  population,  of  cities  and  towns,  which  laws  may  be  altered, 
amended,  or  repealed.  Cities  and  towns  heretofore  organized  or 
incorporated  may  become  organized  under  such  general  laws  when- 
ever a  majority  of  the  electors  voting  at  a  general  election  shall 
so  determine,  and  shall  organize  in  conformity  therewith;  and 
cities  and  towns  heretofore  or  hereafter  organized,  and  all  char- 
ters thereof  framed  or  adopted  by  authority  of  this  Constitution, 
shall  be  subject  to  and  controlled  by   general  laws. 

MUNICIPAL  CORPORATIONS.— The  Constitution  does  not,  ex 
proprio  vigore,  create  or  establish  any  local,  county,  or  municipal  gov- 
ernments.    (People   V.   Provines,   34    Cal.   520.) 

Neither  does  it  abolish  the  municipalities  of  the  state.  (In  re 
Guerrero,  69  Cal.  88,  10  Pac.  261.) 

Under  the  Constitution  of  1849  the  legislature  had  power  to  cre- 
ate a  municipal  corporation  by  a  special  law.  (People  v.  Levee  Dist. 
No.  6,  131  Cal.  30,  63  Pac.  676.) 

A  county  is  not  a  corporation  for  municipal  purposes  within  the 
meaning  of  this  section.  (People  v.  McFadden,  81  Cal.  489,  15  Am. 
St.  Kep.  66,  22  Pac.  851.) 

County  as  municipal  corporation.     See  note,  Ann.  Cas.  1914C,  968. 
Distinction  between  counties  and  municipal   corporations.     See  7 
R.  C.  L.,  §  5,  p.  925. 

A  levee  district  is  not  a  municipal  corporation.  (People  v.  Levee 
Dist.  No.  6,  131  Cal.  30,  63  Pac.  676.) 

The  Sacramento  Drainage  District  organized  under  the  act  of  1905 
is  not  a  corporation  organized  for  municipal  purposes.  (People  v. 
Sacramento  Drainage  Dist.,  155  Cal.  373,  103  Pac.  207.) 


Art.  XI,  §  6  CONSTITUTION  OF  1879.  378 

Eeelamation  districts  are  not  municipal  corporations  within  the 
meaning  of  this  section.  (Reclamation  District  No.  70  v.  Sherman, 
11  Cal.  App.  399,  10.5  Pac.  277.) 

An  irrigation  district  is  a  public  corporation.  (People  v.  Selma  Irr. 
Dist.,  98  Cal.  206,  32  Pac.  1047.) 

Corporations  organized  by  virtue  of  the  Wright  Act  for  the  pur- 
pose of  irrigation  are  public  municipal  corporations.  (Fallbrook  Irr. 
Dist.  V.  Bradley,  164  U.  S.  112,  41  L.  Ed.  369,  17  Sup.  Ct.  Rep.  56.) 

Municipal  corporations  are  not  limited  to  cities  and  towns;  but  the 
legislature  may  by  general  laws  classify  and  provide  for  as  many 
species  of  municipal  corporations  as,  in  its  judgment,  are  demanded 
by  the  welfare  of  the  state.  (In  re  Madera  Irr.  Dist.,  92  Cal.  296, 
27  Am.  St.  Rep.  106,  14  L.  R.  A.  755,  28  Pac.  272,  675.) 

Consolidated  cities  and  counties  are  municipal  corporations  within 
the  meaning  of  this  section.  (Denman  v.  Broderick,  111  Cal.  96,  43 
Pac.  516.) 

A  reclamation  district  is  a  public  corporation  for  municipal  pur- 
poses, and  under  the  old  Constitution  might  be  created  by  special 
act.     (Swamp  Land  Dist.  No.  150  v.  Silver,  98  Cal.  51,  32  Pac.  866.) 

The  term  "municipal"  is  limited  to  "governmental,"  and  cannot  be 
extended  to  commercial  purposes.  (Low  v.  Mayor  etc.  of  Marys- 
ville,  5  Cal.  214.) 

Municipal  corporations  are  but  subordinate  subdivisions  of  the 
state,  which  may  be  created,  altered,  or  abolished  at  the  will  of  the 
legislature,  which  may  enlarge  or  restrict  their  powers,  direct  the 
mode  of  their  exercise,  and  define  what  acts  they  may  or  may  not 
perform,  subject  to  the  limitation  that  the  legislature  cannot  direct 
the  performance  of  an  act  which  will  impair  the  obligations  of  a  con- 
tract.    (San  Francisco  v.  Canavan,  42  Cal.  541.) 

Under  sections  1,  31,  and  37  of  article  IV  of  the  Constitution  of 
1849,  the  legislature  had  the  power  to  create  municipal  corporations 
at  will,  by  special  laws,  and  a  given  territory  could  be  incorporated 
by  it  as  a  municipal  corporation  without  the  consent  or  the  accept- 
ance of  the  inhabitants  thereof.  (People  v.  California  Fish  Co.,  166 
Cal.  576,  138  Pac.  79.) 

Classification. — The  object  of  classifying  municipal  corporations 
according  to  population,  and  in  preventing  their  creation  by  special 
laws,  was  to  avoid  the  necessity  of  special  legislation.  (People  v. 
Henshaw,  76  Cal.  436,  18  Pac.  413.) 

This  section  does  not  limit  the  power  of  classification  to  purposes 
of  the  incorporation  and  organization  of  municipalities,  but  empow- 
ers the  legislature  to  classify  for  the  purpose  of  supplying  the  gen- 
eral laws  required  by  the  varying  needs  of  the  municipalities  so 
classified.     (Rauer  v.  Williams,  118  Cal.  401,  50  Pac.  691.) 

The  power  to  classify  conferred  by  this  section  is  not  limited 
strictly  to  purposes  of  incorporation  and  organization.  (Union  Ice 
Co.  V.Rose,  11  Cal.  App.  357,  104  Pac.  1006.) 

But  a  law  providing  the  conditions  and  mode  of  exercising  the 
power  of  eminent  domain  in  counties  of  one  particular  class  is  not 
authorized  by  this  section.  (City  of  Pasadena  v.  Stimson,  91  Cal. 
238,  27  Pac.  604.) 


379  CITIES,    COUNTIES   AND   TOWNS.  Art.  XI,  §  6 

Classification  must  be  founded  on  some  constitutional  or  natural 
distinction,  and  must  not  be  arbitrary.  (Darcy  v.  City  of  San  Jose, 
104  Cal.  642,  38  Pac.  500.) 

The  classification  mentioned  in  this  section  is  one  that  will  include 
all  cities  and  towns.     (Desmond  v.  Dunn,  55  Cal.  242.) 

The  "McClure  Charter"  was,  therefore,  held  unconstitutional,  be- 
cause it  excluded  from  its  operation  all  municipal  corporations,  except 
consolidated  city  and  county  governments,  and  because  it  was  also 
limited  to  municipal  corporations  of  over  one  hundred  thousand  in- 
habitants, making  no  provision  for  those  having  less  population. 
(Desmond  v.  Dunn,  55  Cal.  242.) 

An  act  classifying  all  municipal  corporations  in  the  state  into  six 
classes  according  to  population  is  a  general  law.  (Pritchett  v.  Stan- 
islaus Co.,  73  Cal.  310,  14  Pac.  795.) 

An  act  directed  at  and  applicable  to  one  particular  named  munici- 
pal corporation,  which  takes  away  a  large  part  of  its  territory,  is 
special  and  local.  (People  v.  Common  Council,  85  Cal.  369,  24  Pac. 
727.) 

An  act  applying  to  the  organization  of  one  particular  class  of 
municipal  corporations  is  valid.  (Mintzer  v.  Schilling,  117  Cal.  361, 
49  Pac.  209.) 

While  the  legislature  cannot  pass  laws  touching  the  organization 
and  incorporation  of  municipalities  except  by  conforming  to  the  re- 
quirements of  the  classification  act,  upon  other  matters  it  may  pass 
general  and  uniform  laws  applicable  either  to  municipal  corporations 
of  a  given  class  or  to  all  of  a  separate  class  created  by  and  desig- 
nated in  the  act  itself,  provided  some  plain  reason  appears  for  the 
limitation  to  a  class,  where  the  law  does  not  apply  to  all  municipali- 
ties within  the  same  general  category.  (Eauer  v.  Williams,  118  Cal. 
401,  50  Pac.  691.) 

The  act  of  1893,  providing  a  special  method  of  collecting  fees  in 
cities  and  counties  of  over  one  hundred  thousand  inhabitants,  al- 
though in  accordance  with  the  general  classification  of  cities,  is  not 
authorized  by  this  section,  since  it  only  applies  to  one  class  without 
reason  why  it  should  not  apply  to  all.  (Eauer  v.  Williams,  118  Cal. 
401,  50  Pac.  691.) 

The  act  of  1891  creating  police  courts  in  cities  having  fifteen  thou- 
sand and  under  eighteen  thousand  inhabitants,  not  being  in  con- 
formity with  the  general  classification  of  municipal  corporations,  is 
void.     (Ex  parte  Giambonini,  117  Cal.  573,  49  Pac.   732.) 

Section  3678  of  the  Political  Code,  authorizing  the  board  of  super- 
visors to  provide  for  additional  clerical  force  to  enable  the  recorder 
to  assist  the  assessor  in  the  performance  of  his  duties,  violates  this 
section.     (Agard  v.  Shaffer,  141  Cal.  72-5,  75  Pac.  343.) 

An  act  providing  for  boards  of  election  commissioners  in  cities  and 
counties  and  counties  having  one  hundred  and  fifty  thousand  or  more 
inhabitants  is  void  as  an  attempt  to  create  a  class  of  municipal  cor- 
porations for  a  special  purpose,  without  reference  to  the  existing 
classification  by  general  law.  (Denman  v.  Broderick,  111  Cal.  96, 
43  Pac.  516.) 

The  legislature  cannot  by  a  special  act  create  a  class  of  cities  by 
population  of  between  ten  thousand  and  twenty-five  thousand,  for  the 


Art.  XI,  §  6  CONSTITUTION  OF  1879.  380 

purpose  of  increasing  the  salaries  of  policemen  in  a  particular  city. 
(Darey  v.  City  of  San  Jose,  104  Cal.  642,  38  Pac.  500.) 

As  to  when  a  city  of  one  class  passes  from  one  class  to  another,  see 
Ex  parte  Halsted,  89  Cal.  471,  26  Pac.  961. 

Validity  of  statute  classifying  according  to  differences  in  popu- 
lation.    See  note,  15  Ann.  Cas.  856. 

Formation. — The  provision  requiring  that  a  "majority  of  the  elec- 
tors voting  at  a  general  election"  must  determine  the  question  of 
organization  imports  that  a  majority  of  all  the  electors  voting  at  the 
election  is  necessary  to  carry  the  proposition,  and  not  simply  a  major- 
ity of  all  the  electors  who  vote  ujion  the  proposition.  (People  v. 
Berkeley,  102  Cal.  298,  23  L.  R.  A.  838,  36  Pac.  591.) 

In  the  absence  of  statutory  provisions  as  to  the  ownership  of  prop- 
erty belonging  to  a  school  district  annexed  to  a  city,  real  estate  be- 
longs to  the  municipality  within  which  it  is  located  as  the  result  of 
the  annexation.  (Vernon  School  Dist.  v.  Board  of  Education,  125 
Cal.  593,  58  Pac.  175.) 

An  act  providing  for  the  annexation  of  territory  to  a  city  upon 
petition  of  electors  of  the  municipality,  to  the  exclusion  of  the  an- 
nexed territory,  is  valid,  if  the  residents  of  the  annexed  territory 
are  fully  protected  by  requiring  a  majority  of  the  voters  thereof  to 
authorize  the  annexation.  (Vernon  School  Dist.  v.  Board  of  Educa- 
tion, 125  Cal.  593,  58  Pac.  175.) 

The  legislature  may  delegate  to  municipal  boards  the  power  and 
discretion  to  say  whether  a  railroad  shall  be  laid  in  the  streets,  and 
when  and  under  what  conditions.  (Town  of  Areata  v.  Areata  etc. 
R.  R.  Co.,  92  Cal.  639,  28  Pac.  676.) 

Where  territory  is  excluded  from  a  municipal  corporation,  the  legis- 
lature may  adjust  the  burden  of  the  corporate  debt.  (Johnson  v. 
San  Diego,  109  Cal.  468,  30  L.  R.  A.  178,  42  Pac.  249.) 

An  act  providing  for  the  refunding  of  the  indebtedness  of  munici- 
pal corporations  other  than  cities  of  the  first  class  is  authorized  by 
this  section.     (Los  Angeles  v.  Teed,  112  Cal.  319,  44  Pac.  580.) 

A  city  or  town  can  be  incorporated,  although  not  organized,  and 
the  application  of  general  laws  should  not  extend  to  them  until  or- 
ganization takes  place,  in  case  the  general  law  for  incorporation 
should  make  it  possible  for  some  period  of  time  to  intervene  between 
the  act  of  incorporation  and  that  of  organization.  (People  v.  Cali- 
fornia Fish  Co.,  166  Cal.  576,  138  Pac.  79.) 

ChaJters. — City  charters,  except  as  to  municipal  affairs,  are  subject 
to  and  controlled  by  general  laws.  (Kennedy  v.  Board  of  Education, 
82  Cal.  483,  22  Pac.  1042;  People  v.  Henshaw,  76  Cal.  436,  18  Pac. 
413;  Ex  parte  Halsted,  89  CaJ.  471,  26  Pac.  961;  Davies  v.  Los  Ange- 
les, 86  Cal.  37,  24  Pac.  771;  Ex  parte  Ah  You,  82  Cal.  339,  22  Pac. 
929;  In  re  Carrillo,  66  Cal.  3,  4  Pac.  695;  Farmer  v.  Behmer,  9  Cal. 
App.  773,  100  Pac.  901.) 

The  legislature  may  pass  general  laws  affecting  municipal  corpora- 
tions without  reference  to  whether  such  corporations  were  formed 
before  or  after  the  Constitution  of  1879.  (Marysville  v.  County  of 
Yuba,  1  Cal.  App.  628,  634,  82  Pac.  975.) 


381  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  6 

Prior  to  the  amendment  of  1896,  the  only  exception  to  this  rule 
was  that  such  charters  were  not  subject  to  general  laws  for  the  or- 
ganization and  incorporation  of  municipal  corporations,  such  as  the 
Municipal  Corporation  Act.  (People  v.  Bagley,  85  Cal.  343,  24  Pac, 
716.) 

This  provision  does  not  apply  where  there  is  no  general  law  on  a 
given  subject  to  which  the  charter  relates.  (People  v.  Howard,  94 
Cal.  73,  29  Pac.  485.) 

The  charters  of  consolidated  city  and  county  governments  are  sub- 
ject to  the  control  of  general  laws.  (People  v.  Babcock,  114  Cal.  559, 
46  Pac.  818.) 

This  provision  is  not  to  be  construed  as  providing  that  charter  pro- 
visions shall  be  repealed  by  a  general  law  upon  the  same  subject  mat- 
ter, but  only  that  the  operation  of  the  inconsistent  charter  provision 
shall  be  suspended  during  the  paramount  operation  of  the  general  law. 
(Byrne  v.  Drain,  127  Cal.  663,  60  Pac.  433.) 

Cities  and  towns  incorporated  previously  to  the  new  Constitution 
are  subject  to  and  controlled  by  general  laws  enacted  for  the  organ- 
ization of  such  governments,  but  the  charters  of  such  cities  and 
towns  remain  in  force  until  a  majority  of  the  electors  determine  to 
become  organized  under  general  laws,  or  to  frame  a  charter  for  their 
own  government.  (Desmond  v.  Dunn,  55  Cal.  242;  People  v.  Ham- 
mond, 66  Cal.  654,  6  Pac.  741;  People  v.  Pond,  89  Cal.  141,  26  Pac. 
€48;  Ex  parte  Helm,  143  Cal.  553,  77  Pac.  453.) 

A  municipality  by  its  charter  in  the  erection  of  schoolhouses  and 
the  issuance  of  bonds  therefor  can  only  run  current  with,  and  never 
counter  to,  the  general  laws  of  the  state  touching  the  common  school 
system.  (Los  Angeles  City  School  Dist.  v.  Longden,  148  Cal.  380, 
83  Pac.  246.) 

General  Laws. — The  following  have  been  held  to  be  general  laws 
within  the  meaning  of  this  section,  and  to  be  superior  to  city  char- 
ters: The  Vrooman  Act,  providing  for  street  work  in  municipalities 
(Thomason  v.  Ruggles,  69  Cal.  465,  11  Pac.  20;  Thomason  v.  Ashworth, 
73  Cal.  73,  14  Pac.  615;  Anderson  v.  De  Urioste,  96  Cal.  404,  31  Pac. 
266) ;  the  Hartson  Act,  providing  for  the  election  of  county,  city  and 
county,  and  township  officers  in  the  even-numbered  years  (Staude  v. 
Board  of  Election  Commrs.,  61  Cal.  313);  the  provision  of  section  1001 
of  the  Civil  Code,  providing  for  the  acquisition  of  private  property 
through  the  exercise  of  the  right  of  eminent  domain  (Santa  Cruz  v. 
Enright,  95  Cal.  105,  30  Pac.  197);  the  provisions  of  the  Political 
Code  as  to  elections  (Fragley  v.  Phelan,  126  Cal.  383,  58  Pac.  923); 
subdivision  6  of  section  36i7  of  the  Political  Code  (Security  Sav. 
Bank  etc.  Co.  v.  Hinton,  97  Cal.  214,  32  Pac.  3);  the  provision  of  the 
Political  Code  that  all  money  pertaining  to  the  public  school  fund 
shall  be  paid  into  the  county  treasury  (Kennedy  v.  Miller,  97  Cal. 
429.  32  Pac.  558) ;  the  act  of  1889,  providing  for  changing  the  bounda- 
ries of  cities  (People  v.  Corouado,  100  Cal.  571,  35  Pac.  162);  section 
536  of  the  Civil  Code,  which  allows  telegraph  and  telephone  corpora- 
tions to  use  rights  of  way  along  waters,  roads  and  highways  (Van 
Ness  V.  Rooney,  160  Cal.  131,  139,  116  Pac.  392);  the  Whitney  Act, 
which  conferred  jurisdiction  upon  the  police  court  of  the  city  of  Oak- 


Art.  XI,  §  6  CONSTITUTION  OP  1879.  382 

land  ov'cr  all  misdemeanors  (Matter  of  Application  of  Westenberg, 
167  Cal.  309,  139  Pae.  674).     See,  also,  note  to  section  25,  article  IV. 

A  provision  of  a  city  charter  fixing  the  time  during  which  the 
polls  are  to  be  open  during  a  municipal  election  is  not  in  conflict  with 
the  general  law,  which  only  refers  to  state  and  county  elections. 
(People  V.  Hill,  125  Cal.  16,  57  Pac.  669.) 

The  proA'ision  of  the  charter  of  Los  Angeles  requiring  contracts 
with  the  city  to  be  in  writing  is  not  subject  to  the  provisions  of  thi> 
general  law  as  to  the  execution  of  contracts  in  general.  (Frick  v. 
Los  Angeles,  115  Cal.  512,  47  Pac.  250.) 

Notwithstanding  the  general  law  has  defined  an  obstruction  to  a 
sidewalk  a  public  nuisance  and  punishable  as  such,  a  city  may  make 
it  a  misdemeanor  to  fail  to  remove  an  obstruction  to  a  sidewalk, 
since  the  municipality  might  legalize  a  partial  obstruction  of  a  street. 
(Ex  parte  Taylor,  87  Cal.  91,  25  Pac.  258.) 

A  provision  of  a  city  charter  prescribing  the  form  of  the  complaint 
in  all  actions  to  recover  city  taxes,  there  being  no  provision  of  the 
general  law  on  the  subject,  is  valid.  (Stockton  v.  Western  Fire  etc. 
Ins.  Co.,  73  Cal.  621,  15  Pac.  314.) 

A  provision  of  a  city  charter  allowing  an  assessment  of  city  taxes 
after  the  first  Monday  in  March  was  not  superseded  by  section  8  of 
article  XIII  of  the  Constitution,  since  that  section  only  has  reference 
to  prospective  assessments.  (Stockton  v.  Western  Fire  etc.  Ins. 
Co.,  73  Cal.  621,  15  Pac.  314.) 

Municipal  affairs. — The  amendment  to  this  section  in  1896  is  retro- 
active and  applies  to  all  existing  charters,  and  has  the  effect  to  re- 
move the  paramount  control  of  general  laws  in  respect  to  municipal 
affairs,  and  to  restore  the  operation  of  municipal  charters  in  respect 
to  such  affairs.     (Byrne  v.  Drain,  127  Cal.  663,  60  Pac.  433.) 

But  that  amendment  did  not  revive  provisions  of  charters  which 
were  void  when  enacted.  (Banaz  v.  Smith,  133  Cal.  102,  65  Pac.  309; 
German  Sav.  etc.  Soc.  v.  Ramish,  138  Cal.  120,  69  Pac.  89,  70  Pac. 
1067;  Ex  parte  Sweetman,  5  Cal.  App.  577,  90  Pac.  1069.) 

In  other  words,  if  the  charter  when  adopted  treated  of  a  municipal 
affair  which  was  afterward  provided  for  by  the  general  laws,  the  char- 
ter provision  was  revived  by  the  amendment  (Byrne  v.  Drain,  127 
Cal.  663,  60  Pac.  433);  but  if  at  the  time  of  the  adoption  of  the  char- 
ter a  provision  thereof  was  inconsistent  with  the  general  laws,  it  was 
void  and  was  not  revived  by  the  amendment.  (Banaz  v.  Smith,  133 
Cal.  102,  65  Pae.  309.) 

Prior  to  the  amendment  to  this  section,  the  charter  of  the  town  of 
Berkeley  was  subject  to  general  laws,  and  a  provision  therein  pre- 
scribing a  penalty  for  selling  liquor  in  conflict  with  the  Penal  Code 
was  void.     (Ex  parte  Sweetman,  5  Cal.  App.  577,  90  Pac.  1069.) 

The  exception  of  municipal  affairs  from  general  legislative  control 
is  to  be  construed  as  relating  wholly  to  cities  and  towns  exercising 
municipal  functions.  It  only  applies  to  San  Francisco,  so  far  as  it 
exercises  municipal  functions  as  distinguished  from  a  county,  and  the 
power  of  the  legislature  to  enact  general  laws  for  the  government  of 
counties  as  such,  including  San  Francisfo.  remains  unaffected  and 
unimpaired.     (Nicholl  v.  Koster,  157  Cal.  416,  108  Pac.  302.) 


383  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  6 

A  municipal  affair  is  one  which  refers  to  the  internal  business 
affairs  of  the  municipality.  (Fragley  v.  Phelan,  126  Cal.  383,  58  Pac. 
923.) 

The  election  of  a  board  of  freeholders  and  the  adoption  of  a  char- 
ter is  not  a  municipal  affair.  (Fragley  v.  Phelan,  126  Cal.  383,  58 
Pac.  923.) 

This  provision  does  not  prevent  the  annexation  of  additional  terri- 
tory to  a  city  under  an  act  of  the  legislature,  with  the  consent  of  the 
municipality.     (People  v.  Oakland,  123  Cal.  598,  56  Pac.  445.) 

Salaries  of  officers  of  the  police  and  fire  department  of  a  city  are 
municipal  affairs.     (Popper  v.  Broderick,  123  Cal.  456,  56  Pac.  53.) 

The  control  of  the  almshouse  of  San  Francisco  is  a  municipal  affair. 
(Weaver  v.  Reddy,  135  Cal.  430,  67  Pac.  683.) 

Municipal  charters  supersede  the  general  law  upon  municipal  af- 
fairs.    (People  V.  Williamson,  135  Cal.  415,  67  Pac.  504.) 

The  functions  of  the  board  of  health  created  by  the  charter  of  the 
city  and  county  of  San  Francisco  are  municipal  affairs.  (People  v. 
Williamson,  135  Cal.  415,  67  Pac.  504.) 

Municipal  corporations  organized  under  special  charters  are  not 
subject  to  general  laws  on  "municipal  affairs."  (Ex  parte  Helm,  143 
Cal.  553,  77  Pac.  453;  Ex  parte  Lemon,  143  Cal.  558,  65  L.  E.  A.  946, 
77  Pac.  455.) 

The  provision  of  section  3366  of  the  Political  Code  forbidding  the 
imposition  of  a  license  tax  for  the  purpose  of  revenue  deals  with  a 
municipal  affair.  (Ex  parte  Helm,  143  Cal.  553,  77  Pac.  453;  Ex  parte 
Lemon,  143  Cal.  558,  65  L.  R.  A.  946,  77  Pac.  455.) 

The  matter  of  the  registration  of  voters  for  a  municipal  election  is 
a  municipal  affair.     (People  v.  Worswick,   142  Cal.  71,  75  Pac.  663.) 

The  regulation  of  the  charges  of  a  public  service  corporation  within 
the  limits  of  a  city  is  a  municipal  affair.  (Home  Tel.  &  Tel.  Co.  v. 
City  of  Los  Angeles,  155  Fed.  554.) 

The  power  to  determine  boundaries  of  a  proposed  town  cannot  be 
exercised  by  the  legislature,  but  must  be  exercised  by  subordinate 
bodies.     (Vernon  v.  Board  of  Supervisors,  142  Cal.  513,  76  Pac.  253.) 

A  provision  in  a  city  charter  conferring  upon  it  power  to  impose 
license  taxes  for  the  purpose  of  revenue  relates  to  a  "municipal 
affair"  and  is  superior  to  the  general  law  forbidding  such  taxes.  (Ex 
parte  Braun,  141  Cal.  204,  74  Pac.  780.) 

The  school  system  is  a  matter  of  general  concern  and  not  a  munici- 
pal affair.     (Hancock  v.  Board  of  Education,  140  Cal.  554,  74  Pac.  44.) 

The  payment  of  fees  of  jurors  in  criminal  actions  is  a  state  affair. 
(Jackson  v.  Baehr,  138  Cal.  266,  71  Pac.  167.) 

A  county  affair  is  not  a  "municipal  affair."  (Popper  v.  Broderick, 
123  Cal.  456,  461,  56  Pac.  53.) 

An  act  requiring  the  signature  of  the  mayor  to  the  tax  levy  deals 
with  a  municipal  aft'air.  (Morton  v.  Broderick,  118  Cal.  474,  50  Pac. 
644.) 

The  opening  of  streets  in  a  city  is  clearly  a  municipal  purpose. 
(Sinton  v.  Ashbury,  41  Cal.  525;  Byrne  v.  Drain,  137  Cal.  663,  60  Pac. 
433.) 

The  charter  of  the  city  and  county  of  San  Francisco  superseded  the 
Park   and  Boulevard   Act,   as   that   act   related   to   a   municipal   affair 


Art.  XI,  §  6  CONSTITUTION  OF  1879.  384 

and  was  inconsistent  with  the  charter.  (Fritz  v.  San  Francisco,  132 
Cal.  373,  64  Pac.  566.) 

The  municipality  is  governed  by  general  laws  as  to  municipal  affairs 
as  to  which  the  charter  is  silent.  (Fragley  v.  Phelan,  126  Cal.  383, 
58  Pac.  923.) 

Conceding  that  the  removal  of  municipal  officers  is  a  municipal 
affair,  that  cannot  affect  the  concurrent  jurisdiction  of  the  superior 
court  conferred  by  the  general  law.  (Coffey  v.  Superior  Court,  147 
Cal.  525,  82  Pac.  75.) 

Where  the  jurisdiction  under  the  charter  in  regard  to  a  municipal 
affair  is  left  untrammeled,  unrestrained  and  uncontrolled  by  the  gen- 
eral law,  both  may  stand.  (Coffey  v.  Superior  Court,  147  Cal.  525, 
82  Pac.  75.) 

The  issuance  of  bonds  for  the  repair  of  existing  schoolhouses  and 
for  new  schoolhouses  is  a  municipal  affair.  (Law  v.  San  Francisco, 
144  Cal.  384,  77  Pac.  1014.) 

The  authority  given  to  a  city  by  its  charter  to  issue  bonds  for  the 
erection  of  schoolhouses  within  the  city  as  a  "municipal  affair"  is 
not  exclusive  of  the  power  conferred  upon  the  trustees  of  the  school 
district  comprising  the  city.  (Los  Angeles  City  School  Dist.  v.  Long- 
den,  148  Cal.  380,  83  Pac.  246.) 

The  disposition  of  fines  for  misdemeanors  punished  by  virtue  of  the 
state  law  is  not  a  municipal  affair.  (Marysville  v.  County  of  Yuba, 
1  Cal.  App.  628,  634,  82  Pac.  975.) 

The  act  of  1901  restricting  the  power  of  licensing  by  local  legisla- 
tive bodies  for  purposes  of  regulation,  does  not  apply  to  chartered 
cities.     (In  re  Diehl,  8  Cal.  App.  51,  96  Pac.  98.) 

Upon  the  adoption  of  the  San  Francisco  charter  the  Police  Pension 
Act  of  1899  (Stats.  1899,  p.  57)  ceased  to  be  operative  in  that  city 
and  county.  (Burke  v.  Board  of  Trustees,  4  Cal.  App.  235,  87  Pac. 
421.) 

The  removal  of  a  chief  of  police  of  a  city  is  a  municipal  affair. 
(Dinan  v.  Superior  Court,  6  Cal.  App.  217,  91  Pac.  806.) 

The  acquisition  of  waterworks  by  a  city  is  a  municipal  affair. 
(Cary  v.  Blodgett,  10  Cal.  App.  463,  102  Pac.  668.) 

The  adoption  of  the  initiative  and  referendum  is  a  municipal  affair. 
(In  re  Pfahler,  150  Cal.  71,  11  Ann.  Cas.  911,  11  L.  E.  A.  (N.  S.)  1092, 
88  Pac.  270.) 

The  manner  of  enacting  municipal  ordinances  and  resolutions  is  a 
municipal  affair.  (In  re  Pfahler,  150  Cal.  71,  11  Ann.  Cas.  911,  11 
L.  E.  A.  (N.  S.)   1092,  88  Pac.  270.) 

The  licensing  of  forms  of  vice  and  crime  which  are  both  mala  in 
se  and  mala  prohibita  cannot  be  classed  as  "municipal  affairs." 
(Farmer  v.  Behmer,  9  Cal.  App.  773,  100  Pac.  901.) 

The  extension  of  the  jurisdiction  of  the  superior  courts  to  include 
"probation"  work  (Juvenile  Court  Law,  Stats.  1909,  p.  213)  is  an 
exercise  of  the  police  powers  of  the  state,  through  the  judicial  depart- 
ment; this  is  not  a  matter  coming  within  "municipal  affairs"  within 
the  meaning  of  that  term  in  the  Constitution.  (Nicholl  v.  Koster, 
157  Cal.  416,  108  Pac.  302.) 

The  provision  of  the  section  denying  the  power  of  the  legislature 
to  abrogate   or  annul  the  special   charters   of  municipal  corporations 


385  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  6 

antedating  its  adoption,  applies  only  to  organized  municipalities,  and 
has  no  application  to  a  municipality  which  has  never  been  actually 
organized.     (People  v.  Wilmington,  151  Cal.  649,  91  Pac.  524.) 

The  act  for  the  consolidation  of  municipalities  (Stats.  1909,  p.  282) 
is  not  in  conflict  with  the  Constitution.  It  is  in  no  sense  a  special 
law,  but  its  provisions  are  applicable  in  every  case  of  contiguous 
municipalities  desiring  to  consolidate  into  one  municipality,  and  has 
a  uniform  operation  in  all  cases.  (Williams  v.  Board  of  Trustees,  157 
Cal.  711,  109  Pac.  4S2.) 

The  annexation  of  territory  to  a  city  is  not  a  municipal  affair,  but 
is  a  matter  pertaining  to  the  state  at  large  and  within  its  general 
powers  and  functions,  and  the  general  law  upon  that  subject  controls. 
(People  V.  City  of  Long  Beach,  155  Cal.  604,  102  Pac.  664.) 

Under  its  authority  to  provide  by  general  laws  for  the  incorpora- 
tion of  cities,  the  legislature  can  provide  for  the  annexation  of  terri- 
tory to  existing  municipalities.  (People  v.  City  of  Los  Angeles,  154 
Cal.  220,  97  Pac.  311.) 

The  power  of  the  legislature  to  provide  for  police  and  inferior 
courts  in  cities  and  towns  is  not  abridged  by  this  section,  where  a 
city  having  a  freeholders'  charter  has  not  taken  advantage  of  the 
permission  granted  by  section  8^2  of  article  XI  to  include  in  its  char- 
ter provision  for  the  establishment  of  a  police  court.  (Fleming  v. 
Hance,  153  Cal.  162,  94  Pac.  620.) 

The  fixing  of  the  boundaries  of  the  territory  to  be  annexed  to  a 
city  or  town  is  not  a  municipal  affair.  (People  v.  Ontario,  148  Cal. 
625,  84  Pac.  205.) 

The  trial  and  punishment  of  offenses  defined  by  the  laws  of  the 
state  is  not  a  municipal  affair.  (Robert  v.  Police  Court,  148  Cal. 
131,  82  Pac.  838.     Per  Beatty,  C.  J.,  and  Henshaw,  .L) 

A  provision  of  a  charter  providing  for  the  removal  of  municipal 
oflScers  does  not  supersede  the  provisions  of  the  Penal  Code  conferring 
jurisdiction  of  such  removal  upon  the  superior  court.  (Coffey  v.  Su- 
perior Court,  147  Cal.  525,  82  Pac.  75.) 

To  be  "subject  to"  is  "to  become  subservient  to,"  or  "subordinate 
to,"  and  to  control  is  defined  as  "to  exercise  a  diverting,  restraining 
or  governing  influence  or  to  direct,  to  counteract,  to  regulate."  (Cof- 
fey V.  Superior  Court,  147  Cal.  525,  82  Pac.  75.) 

The  municipality  is  governed  by  general  laws  as  to  municipal  affairs 
as  to  which  the  charter  is  silent.  (Clouse  v.  City  of  San  Diego,  159 
Cal.  434,  114  Pac.  573.) 

The  Constitution  neither  expressly  nor  impliedly  forbids  a  munici- 
pal corporation  from  engaging  in  the  business  of  supplying  electricity 
for  motive  power.     (Clark  v.  Los  Angeles,  160  Cal.  30,  116  Pac.  722.) 

The  question  whether  and  to  what  extent  the  streets  of  a  munici- 
pality shall  be  subjected  to  such  secondary  uses  as  the  maintenance 
therein  of  telegraph  and  telephone  poles  and  wires  is  a  "municipal 
affair."  (Sunset  Tel.  &  Tel.  Co.  v.  Pasadena,  161  Cal.  265,  118  Pac. 
796.) 

In  the  matter  of  compensation  of  municipal  officers,  the  charter 
provisions  are  paramount  and  prevail  over  any  general  law  in  con- 
flict therewith  existing  at  the  time  of  the  adoption  of  the  charter,  or 
Constitution — 25 


Art.  XI,  §  7  CONSTITUTION  OP  1879.  386 

subsequently  enacted  by  the  legislature.  (Trefts  v.  McDougald,  15 
Cal.  App.  584,  115  Pac.  655.) 

Section  751  of  the  municipal  corporation  bill,  as  amended  in  1901, 
authorizing  the  board  of  trustees  of  a  city  in  its  discretion  to  make 
the  city  treasurer  ex-officio  license  tax  collector,  is  constitutional. 
(City  of  Woodland  v.  Leech,  20  Cal.  App.  15,  127  Pac.  1040.) 

Municipalities  operating  under  municipal  charters  have  power  to 
legislate  uncontrolled  by  general  law  concerning  municipal  affairs. 
(Matter  of  Application  of  Prentice,  24  Cal.  App.  34.5,  141  Pac.  220.) 

City  and  county  governments  may  be  consolidated. 

Sec.  7.  City  and  county  governments  may  be  merged  and 
consolidated  into  one  municipal  government,  with  one  set 
of  officers,  and  may  be  incorporated  under  general  laws  pro- 
viding for  the  incorporation  and  organization  of  corpora- 
tions for  municipal  purposes.  The  provisions  of  this  Con- 
stitution applicable  to  cities,  and  also  those  applicable  to 
counties,  so  far  as  not  inconsistent  or  prohibited  to  cities, 
shall  be  applicable  to  such  consolidated  government. 
(Amendment  adopted  November  6,  1894.) 

[ORIGINAL  SECTION.] 
Sec.  7.  City  and  county  governments  may  be  merged  and  con- 
solidated into  one  municipal  government,  with  one  set  of  officers, 
and  may  be  incorporated  under  general  laws  providing  for  the 
incorporation  and  organization  of  corporations  for  municipal  pur- 
poses. The  provisions  of  this  Constitution  applicable  to  cities, 
and  also  those  applicable  to  counties,  so  far  as  not  inconsistent  or 
not  prohibited  to  cities,  shall  be  applicable  to  such  consolidated 
government.  In  consolidated  city  and  county  governments,  of 
more  than  one  hundred  thousand  population,  there  shall  be  two 
boards  of  supervisors  or  houses  of  legislation — one  of  which,  to 
consist  of  twelve  persons,  shall  be  elected  by  general  ticket  from 
the  city  and  county  at  large,  and  shall  hold  office  for  the  term  of 
four  years,  but  shall  be  so  classified  that  after  the  first  election 
only  six  shall  be  elected  every  two  years;  the  other,  to  consist  of 
twelve  persons,  shall  be  elected  every  two  years,  and  shall  hold 
office  for  the  term  of  two  years.  Any  vacancy  occurring  in  the 
office  of  supervisor,  in  either  board,  shall  be  filled  by  the  mayor 
or  other  chief  executive  officer. 

CONSOLIDATED  GOVERNMENTS.— There  is  no  constitutional 
inhibition  against  incorporating  a  portion  of  the  inhabitants  of  a 
county  as  a  city,  or  creating  a  county  out  of  the  territory  of  a  city. 
(People  V.  Hill,  7  Cal.  97.) 

The  act  consolidating  the  city  and  county  of  San  Francisco,  com- 
monly known  as  the  Consolidation  Act,  is  constitutional.  (People  v. 
Hi]l,"7  Cal.  97.) 

The  act  to  incorporate  the  city  and  county  of  Sacramento  did  not 
repeal  the  law  by  which  the  county  of  Sacramento  was  created.     The 


387  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  71/2 

city  and  count}'  constitute  a  corporation  for  some  purposes,  while  they 
are  distinct  as  to  others.     (People  v.  Mullins,  10  Cal.  20.) 

The  city  and  county  of  San  Francisco  is  the  successor  of  the  city 
of  San  Francisco,  which  was  not  destroyed  by  the  consolidation,  but 
continued.     (People  v.  Board  of  Supervisors,  21  Cal.  668.) 

The  body  politic  known  as  the  city  and  county  of  San  Francisco  is 
a  municipal  corporation,  and  in  matters  of  government  is  to  be  re- 
garded as  a  city.  But  the  territory  over  which  that  government  is 
exercised,  considered  in  its  political  and  judicial  relations  to  other 
portions  of  the  state,  is  a  county.  (Kahn  v.  Sutro,  114  Cal.  316,  33 
L.  R.  A.  620,  46  Pac.  87;  Crowley  v.  Freud,  132  Cal.  440,  64  Pac.  696. 
But  see  Martin  v.  Board  of  Election  Commrs.,  126  Cal.  404,  58  Pac. 
932.) 

The  word  "city,"  when  used  in  the  Constitution,  includes  a  consoli- 
dated city  and  county.  (People  v.  Hoge,  55  Cal.  612;  Morgan  v. 
Menzies,  60  Cal.  341.) 

The  provisions  of  this  section  are  prospective  and  apply  only  to 
governments  merged  after  the  Constitution  went  into  effect.  (Wood 
V.  Board  of  Election  Commrs.,  58  Cal.  561.) 

The  provision  of  this  section  for  two  boards  of  supervisors  applied 
only  to  general  laws  or  charters  passed  subsequently  to  the  adoption 
of  the  Constitution.      (Desmond  v.  Dunn,  55  Cal.  242.) 

Under  the  provision  of  this  section  that  the  provisions  of  the  Con- 
stitution as  to  cities  shall  apply  to  consolidated  cities  and  counties, 
the  provisions  of  section  6  of  this  article  apply  to  consolidated  cities 
and  counties.     (Desmond  v.  Dunn,  55  Cal.  242.) 

The  provisions  of  section  11,  article  XI,  are  applicable  to  consoli- 
dated city  and  county  governments.  (Ex  parte  Keeney,  84  Cal. 
304,  24  Pac.  34.) 

Section  5,  article  XI,  requiring  the  legislature  to  provide  for  the 
strict  accountability  of  county  officers  for  all  fees  which  may  be 
collected  by  them,  is  applicable  to  consolidated  cities  and  counties. 
(Eauer  v.  Williams,  118  Cal.  401,  50  Pac.  691.) 

Freeholders'  charters  for  counties. 

Sec.  7^2-  -Any  county  may  frame  a  charter  for  its  own 
government  consistent  with  and  subject  to  the  Constitution 
(or,  having  framed  such  a  charter,  may  frame  a  new  one), 
and  relating  to  matters  authorized  by  provisions  of  the  Con- 
stitution, by  causing  a  board  of  fifteen  freeholders,  Avho 
have  been  for  at  least  five  years  qualified  electors  thereof,  to 
be  elected  by  the  qualified  electors  of  said  county,  at  a  gen- 
eral or  special  election.  Said  board  of  freeholders  may  be 
so  elected  in  pursuance  of  an  ordinance  adopted  by  the  vote 
of  three-fifths  of  all  the  members  of  the  board  of  super- 
visors of  sucb  county,  declaring  that  the  public  interest  re- 
quires the  election  of  such  board  for  the  purpose  of  prepar- 


Art.  XI,  §  71/2  CONSTITUTION  OF  1879.  388 

ing  and  proposing  a  charter  for  said  county,  or  in.  pursuance 
of  a  petition  of  qualified  electors  of  said  county  as  herein- 
after provided.  Such  petition,  signed  by  fifteen  per  cen- 
tum of  the  qualified  electors  of  said  county,  computed  upon 
the  total  number  of  votes  cast  therein  for  all  candidates  for 
governor  at  the  last  preceding  general  election  at  which  a 
governor  was  elected,  praying  for  the  election  of  a  board  of 
fifteen  freeholders  to  prepare  and  propose  a  charter  for  said 
county,  may  be  filed  in  the  office  of  the  county  clerk.  It 
shall  be  the  duty  of  said  county  clerk,  within  twenty  days 
after  the  filing  of  said  petition,  to  examine  the  same,  and  to 
ascertain  from  the  record  of  the  registration  of  electors  of 
the  county,  whether  said  petition  is  signed  by  the  requisite 
number  of  qualified  electors.  If  required  by  said  clerk,  the 
board  of  supervisors  shall  authorize  him  to  employ  persons 
specially  to  assist  him  in  the  work  of  examining  such  peti- 
tion, and  shall  provide  for  their  compensation.  Upon  the 
completion  of  such  examination,  said  clerk  shall  forthwith 
attach  to  said  petition  his  certificate,  properly  dated,  show- 
ing the  result  thereof,  and  if,  by  said  certificate,  it  shall 
appear  that  said  petition  is  signed  by  the  requisite  number 
of  qualified  electors,  said  clerk  shall  immediately  present 
said  petition  to  the  board  of  supervisors,  if  it  be  in  session, 
otherwise  at  its  next  regular  meeting  after  the  date  of  such 
certificate.  Upon  the  adoption  of  such  ordinance,  or  the 
presentation  of  such  petition,  said  board  of  supervisors  shall 
order  the  holding  of  a  special  election  for  the  purpose  of 
electing  such  board  of  freeholders,  which  said  special  elec- 
tion shall  be  held  not  less  than  twenty  days  nor  more  than 
sixty  days  after  the  adoption  of  the  ordinance  aforesaid  or 
the  presentation  of  said  petition  to  said  board  of  super- 
visors ;  provided,  that  if  a  general  election  shall  occur  in 
said  county  not  less  than  twenty  days  nor  more  than  sixty 
days  after  the  adoption  of  the  ordinance  aforesaid,  or  such 
presentation  of  said  petition  to  said  board  of  supervisors, 
said  board  of  freeholders  may  be  elected  at  such  general 
election.  Candidates  for  election  as  members  of  said  board 
of  freeholders  shall  be  nominated  by  petition,  substantially 
in  the  same  manner  as  may  be  provided  by  general  law  for 


389  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  71/^ 

the  nomination,  by  petition  of  electors,  of  candidates  for 
county  offices,  to  be  voted  for  at  general  elections.  It  shall 
be  the  duty  of  said  board  of  freeholders,  within  one  hundred 
and  twenty  days  after  the  result  of  such  election  shall  have 
been  declared  by  said  board  of  supervisors,  to  prepare  and 
propose  a  charter  for  said  county,  which  shall  be  signed  in 
duplicate  by  the  members  of  said  board  of  freeholders,  or  a 
majority  of  them,  and  be  filed,  one  copy  in  the  office  of  the 
county  clerk  of  said  county  and  the  other  in  the  office  of  the 
county  recorder  thereof.  Said  board  of  supervisors  shall 
thereupon  cause  said  proposed  charter  to  be  published  for  at 
least  ten  times  in  a  daily  newspaper  of  general  circulation, 
printed,  published  and  circulated  in  said  county;  provided, 
that  in  any  county  where  no  such  daily  newspaper  is 
printed,  published  and  circulated,  such  proposed  charter 
shall  be  published  for  at  least  three  times  in  at  least  one 
weekly  newspaper,  of  general  circulation,  printed,  published 
and  circulated  in  such  county ;  and  provided,  that  in  any 
county  where  neither  such  daily  nor  such  weekly  newspaper 
is  printed,  published  and  circulated,  a  copy  of  such  pro- 
posed charter  shall  be  posted  by  the  county  clerk  in  three 
public  places  in  said  county,  and  on  or  near  the  entrance  to 
at  least  one  public  schoolhouse  in  each  school  district  in 
said  county,  and  the  first  publication  or  the  posting  of  such 
proposed  charter  shall  be  made  within  fifteen  days  after  the 
filing  of  a  copy  thereof,  as  aforesaid,  in  the  office  of  the 
county  clerk.  Said  proposed  charter  shall  be  submitted  by 
said  board  of  supervisors  to  the  qualified  electors  of  said 
county  at  a  special  election  held  not  less  than  thirty  days 
nor  more  than  sixty  days  after  the  completion  of  such  pub- 
lication, or  after  such  posting ;  provided,  that  if  a  general 
election  shall  occur  in  said  county  not  less  than  thirty  days 
nor  more  than  sixty  days  after  the  completion  of  such  pub- 
lication, or  after  such  posting,  then  such  proposed  charter 
may  be  so  submitted  at  such  general  election.  If  a  majority 
of  said  qualified  electors,  voting  thereon  at  such  general 
or  special  election,  shall  vote  in  favor  of  such  proposed  char- 
ter, it  shall  be  deemed  to  be  ratified,  and  shall  be  forthwith 
submitted  to   the  legislature,   if  it  be   in  regular  session, 


Art.  XI,  §  7I/2  CONSTITUTION  OF  1879.  390 

otherwise  at  its  next  regular  session,  or  it  may  be  submitted 
to  the  legislature  in  extraordinary  session,  for  its  approval 
or  rejection  as  a  whole,  without  power  of  alteration  or 
amendment.  Such  approval  may  be  made  by  concurrent 
resolution,  and  if  approved  by  a  majority  vote  of  the  mem- 
bers elected  to  each  house,  such  charter  shall  become  the 
charter  of  such  county  and  shall  become  the  organic  law 
thereof  relative  to  the  matters  therein  provided,  and  super- 
sede any  existing  charter  framed  under  the  provisions  of 
this  section,  and  all  amendments  thereof,  and  shall  super- 
sede all  laws  inconsistent  with  such  charter  relative  to  the 
matters  provided  in  such  charter.  A  copy  of  such  charter, 
certified  and  authenticated  by  the  chairman  and  clerk  of  the 
board  of  supervisors  under  the  seal  of  said  board  and  at- 
tested by  the  county  clerk  of  said  county,  setting  forth  the 
submission  of  such  charter  to  the  electors  of  said  county, 
and  its  ratification  by  them,  shall,  after  the  approval  of  such 
charter  by  the  legislature,  be  made  in  duplicate,  and  filed, 
one  in  the  office  of  the  secretary  of  state  and  the  other,  after 
being  recorded  in  the  office  of  the  recorder  of  said  county, 
shall  be  filed  in  the  offiice  of  the  county  clerk  thereof,  and 
thereafter  all  courts  shall  take  judicial  notice  of  said  char- 
ter. 

:  The  charter,  so  ratified,  may  be  amended  by  proposals 
therefor  submitted  by  the  board  of  supervisors  of  the  county 
to  the  qualified  electors  thereof  at  a  general  or  special  elec- 
tion held  not  less  than  thirty  days  nor  more  than  sixty  days 
after  the  publication  of  such  proposals  for  ten  times  in  a 
daily  newspaper  of  general  circulation,  printed,  published 
and  circulated  in  said  county ;  provided,  that  in  any  county 
where  no  such  daily  newspaper  is  printed,  published  and 
circulated,  such  proposed  charter  shall  be  published  for  at 
least  three  times  in  at  least  one  weekly  newspaper,  of  gen- 
eral circulation,  printed,  published  and  circulated  in  such 
county ;  provided,  that  in  any  county  where  neither  such 
daily  nor  such  w^eekly  newspaper  is  printed,  published  and 
circulated,  a  copy  of  such  proposed  charter  shall  be  posted 
by  the  county  clerk  in  three  public  places  in  said  county, 
and  on  or  near  the  entrance  to  at  least  one  public  school- 


391  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  71/^ 

house  in  each  school  district  in  said  county.  If  a  majority 
of  such  qualified  electors  voting  thereon,  at  such  general  or 
special  election,  shall  vote  in  favor  of  any  such  proposed 
amendment  or  amendments,  or  any  amendment  or  amend- 
ments proposed  by  petition  as  hereinafter  provided,  such 
amendment  or  amendments  shall  be  deemed  to  be  ratified, 
and  shall  be  forthwith  submitted  to  the  legislature,  if  it  be 
in  regular  session,  otherwise  at  its  next  regular  session,  or 
may  be  submitted  to  the  legislature  in  extraordinary  ses- 
sion, for  approval  or  rejection  as  a  whole,  without  power  of 
alteration  or  amendment,  and  if  approved  by  the  legisla- 
ture, as  herein  provided  for  the  approval  of  the  charter, 
such  charter  shall  be  amended  accordingly.  A  copy  of  such 
amendment  or  amendments  shall,  after  the  approval  thereof 
by  the  legislature,  be  made  in  duplicate,  and  shall  be  au- 
thenticated, certified,  recorded  and  filed  as  herein  provided 
for  the  charter,  and  with  like  force  and  effect.  Whenever 
a  petition  signed  by  ten  per  centum  of  the  qualified  electors 
of  any  county,  computed  upon  the  total  number  of  votes 
cast  in  said  county  for  all  candidates  for  governor  at  the 
last  general  election,  at  which  a  governor  was  elected,  is 
filed  in  the  office  of  the  county  clerk  of  said  county,  peti- 
tioning the  board  of  supervisors  thereof  to  submit  any  pro- 
posed amendment  or  amendments  to  the  charter  of  such 
county,  which  amendment  or  amendments  shall  be  set  forth 
in  full  in  such  petition,  to  the  qualified  electors  thereof,  such 
petition  shall  forthwith  be  examined  and  certified  by  the 
county  clerk,  and  if  signed  by  the  requisite  number  of 
qualified  electors  of  such  county,  shall  be  presented  to  the 
said  board  of  supervisors,  by  the  said  county  clerk,  as  here- 
inbefore provided  for  petitions  for  the  election  of  boards  of 
freeholders.  Upon  the  presentation  of  said  petition  to  said 
board  of  supervisors,  said  board  must  submit  the  amend- 
ment or  amendments  set  forth  therein  to  the  qualified  elec- 
tors of  said  county  at  a  general  or  special  election  held  not 
less  than  thirty  days  nor  more  than  sixty  days  after  the 
publication  or  posting  of  such  proposed  amendment  or 
amendments  in  the  same  manner  as  hereinbefore  provided 
in  the  case  of  the  submission  of  any  proposed  amendment 


Art.  XI,  §  71/2  CONSTITUTION  OF  1879.  392 

or  amendments  to  such  charter,  proposed  and  submitted  by 
the  board  of  supervisors.  In  submitting  any  such  charter, 
or  amendments  thereto,  any  alternative  article  or  proposi- 
tion may  be  presented  for  the  choice  of  the  electors,  and 
may  be  voted  on  separately  without  prejudice  to  others. 

Every  special  election  held  under  the  provisions  of  this 
section,  for  the  election  of  boards  of  freeholders  or  for  the 
submission  of  proposed  charters,  or  any  amendment  or 
amendments  thereto,  shall  be  called  by  the  board  of  super- 
visors, by  ordinance,  which  shall  specify  the  purpose  and 
time  of  such  election  and  shall  establish  the  election  precincts 
and  designate  the  polling  places  therein,  and  the  names  of 
the  election  officers  for  each  such  precinct.  Such  ordinance, 
prior  to  such  election,  shall  be  published  five  times  in  a  daily 
newspaper,  or  twice  in  a  weekly  newspaper,  if  there  be  no 
such  daily  newspaper,  printed,  published  and  circulated  in 
said  county;  provided,  that  if  no  such  daily  or  weekly  news- 
paper be  printed  or  published  in  such  county,  then  a  copy  of 
such  ordinance  shall  be  posted  by  the  county  clerk  in  three 
public  places  in  such  county  and  in  or  near  the  entrance  to 
at  least  one  public  schoolhouse  in  each  school  district  therein. 
In  all  other  respects,  every  such  election  shall  be  held  and 
conducted,  the  returns  thereof  canvassed  and  the  result  there- 
of declared  by  the  board  of  supervisors  in  the  same  manner 
as  provided  by  law  for  general  elections.  Whenever  boards 
of  freeholders  shall  be  elected,  or  any  such  proposed  charter, 
or  amendment  or  amendments  thereto,  submitted,  at  a  gen- 
eral election,  the  general  laws  applicable  to  the  election  of 
county  officers  and  the  submission  of  propositions  to  the 
vote  of  electors,  shall  be  followed  in  so  far  as  the  same  may 
be  applicable  thereto. 

It  shall  be  competent,  in  all  charters,  framed  under  the 
authority  given  by  this  section  to  provide,  in  addition  to 
any  other  provisions  allowable  by  this  Constitution,  and  the 
same  shall  provide,  for  the  following  matters : 

1.  For  boards  of  supervisors  and  for  the  constitution, 
regulation  and  government  thereof,  for  the  times  at  which 
and  the  terms  for  which  the  members  of  said  board  shall  be 
elected,  for  the  number  of  members,  not  less  than  three,  that 


393  CITIES,    COUNTIES   AND    TOWNS.         Art.  XI,  §  T^^ 

shall  constitute  such  boards,  for  their  compensation  and  for 
their  election,  either  by  the  electors  of  the  counties  at  large 
or  by  districts ;  provided,  that  in  any  event  said  board  shall 
consist  of  one  member  for  each  district,  who  must  be  a 
qualified  elector  thereof;  and 

2.  For  sheriffs,  county  clerks,  treasurers,  recorders,  li- 
cense collectors,  tax  collectors,  public  administrators,  coro- 
ners, surveyors,  district  attorneys,  auditors,  assessors  and 
superintendents  of  schools,  for  the  election  or  appointment 
of  said  officers,  or  any  of  them,  for  the  times  at  which  and 
the  terms  for  which,  said  officers  shall  be  elected  or  ap- 
pointed, and  for  their  compensation,  or  for  the  fixing  of 
such  compensation  by  boards  of  supervisors,  and,  if  ap- 
pointed, for  the  manner  of  their  appointments ;  and 

3.  For  the  number  of  justices  of  the  peace  and  constables 
for  each  township,  or  for  the  number  of  such  judges  and 
other  officers  of  such  inferior  courts  as  may  be  provided  by 
the  Constitution  or  general  law,  for  the  election  or  appoint- 
ment of  said  officers,  for  the  times  at  which  and  the  terms 
for  which  said  officers  shall  be  elected  or  appointed,  and  for 
their  compensation,  or  for  the  fixing  of  such  compensation 
by  boards  of  supervisors,  and  if  appointed,  for  the  manner 
of  their  appointment ;  and 

4.  For  the  powers  and  duties  of  boards  of  supervisors  and 
all  other  county  officers,  for  their  removal  and  for  the  con- 
solidation and  segregation  of  county  offices,  and  for  the 
manner  of  filling  all  vacancies  occurring  therein ;  provided, 
that  the  provisions  of  such  charters  relating  to  the  powers 
and  duties  of  boards  of  supervisors  and  all  other  county 
officers  shall  be  subject  to  and  controlled  by  general  laws; 
and 

4V^.  For  the  assumption  and  discharge  by  county  officers 
of  certain  of  the  municipal  functions  of  the  cities  and  towns 
within  the  county,  whenever,  in  the  case  of  cities  and  tOAvns 
incorporated  under  general  laws,  the  discharge  by  county 
officers  of  such  municipal  functions  is  authorized  by  general 
law,  or  whenever,  in  the  case  of  cities  and  towns  organized 
under  section  eight  of  this  article,  the  discharge  by  county 
officers  of  such  municipal  functions  is  authorized  by  provi- 


Art.  XI,  §  71/2  CONSTITUTION  OF  1879.  394 

sions  of  the  charters,  or  by  amendments  thereto,  of  such 
cities  or  towns. 

5.  For  the  fixing  and  regulation  hy  boards  of  supervisors, 
by  ordinance,  of  the  appointment  and  number  of  assistants, 
deputies,  clerks,  attaches  and  other  persons  to  be  employed, 
from  time  to  time,  in  the  several  offices  of  the  county,  and 
for  the  prescribing  and  regulating  by  such  boards  of  the 
powers,  duties,  qualifications  and  compensation  of  such  per- 
sons, the  times  at  which,  and  terms  for  which  they  shall  be 
appointed,  and  the  manner  of  their  appointment  and  re- 
moval; and 

6.  For  the  compensation  of  such  fish  and  game  wardens, 
probation  and  other  officers  as  may  be  provided  by  general 
law,  or  for  the  fixing  of  such  compensation  by  boards  of 
supervisors. 

All  elective  officers  of  counties,  and  of  townships,  of  road 
districts  and  of  highway  construction  divisions  therein  shall 
be  nominated  and  elected  in  the  manner  provided  by  general 
laws  for  the  nomination  and  election  of  such  officers. 

All  charters  framed  under  the  authority  given  by  this  sec- 
tion, in  addition  to  the  matters  herein  above  specified,  may 
provide  as  follows : 

For  officers  other  tTian  those  required  by  the  Constitution 
and  laws  of  the  state,  or  for  the  creation  of  any  or  all  of 
such  offices  by  boards  of  supervisors,  for  the  election  or  ap- 
pointment of  persons  to  fill  such  offices,  for  the  manner  of 
such  appointment,  for  the  times  at  which  and  the  terms  for 
which  such  persons  shall  be  so  elected  or  appointed,  and  for 
their  compensation,  or  for  the  fixing  of  such  compensation 
by  boards  of  supervisors. 

For  offices  hereafter  created  by  this  Constitution  or  by 
general  law,  for  the  election  or  appointment  of  persons  to 
fill  such  offices,  for  the  manner  of  such  appointment,  for  the 
times  at  which  and  the  terms  for  which  such  persons  shall 
be  so  elected  or  appointed,  and  for  their  compensation,  or 
for  the  fixing  of  such  compensation  by  boards  of  super- 
visors. 

For  the  formation,  in  such  counties,  of  road  districts  for 
the   care,   maintenance,   repair,  inspection   and  supervision 


395  CITIES,    COUNTIES    AND    TOWNS,  Art.  XI,  §  71/2 

only  of  roads,  highways  and  bridges ;  and  for  the  formation, 
in  such  counties,  of  highway  construction  divisions  for  the 
construction  only  of  roads,  highways  and  bridges ;  for  the 
inclusion  in  any  such  district  or  division,  of  the  whole  or 
any  part  of  any  incorporated  city  or  town,  upon  ordinance 
passed  by  such  incorporated  city  or  town  authorizing  the 
same,  and  upon  the  assent  to  such  inclusion  by  a  majority  of 
the  qualified  electors  of  such  incorporated  city  or  town,  or 
portion  thereof,  proposed  to  be  so  included,  at  an  election 
held  for  that  purpose ;  for  the  organization,  government, 
powers  and  jurisdiction  of  such  districts  and  divisions,  and 
for  raising  revenue  therein,  for  such  purposes,  by  taxation, 
upon  the  assent  of  a  majority  of  the  qualified  electors  of 
such  districts  or  divisions,  voting  at  an  election  to  be  held 
for  that  purpose ;  for  the  incurring  of  indebtedness  therefor 
by  such  counties,  districts  or  divisions  for  such  purposes  re- 
spectively, by  the  issuance  and  sale,  by  the  counties,  of 
bonds  of  such  counties,  districts  or  divisions,  and  the  ex- 
penditure of  the  proceeds  of  the  sale  of  such  bonds,  and  for 
levying  and  collecting  taxes  against  the  property  of  the 
counties,  districts  or  divisions,  as  the  case  may  be,  for  the 
payment  of  the  principal  and  interest  of  such  indebtedness 
at  maturity ;  provided,  that  any  such  indebtedness  shall  not 
be  incurred  without  the  assent  of  two-thirds  of  the  qualified 
electors  of  the  county,  district  or  division,  as  the  case  may 
be,  voting  at  an  election  to  be  held  for  that  purpose,  nor 
unless  before  or  at  the  time  of  incurring  such  indebtedness 
provision  shall  be  made  for  the  collection  of  an  annual  tax 
sufficient  to  pay  the  interest  on  such  indebtedness  as  it  falls 
due,  and  also  for  a  sinking  fund  for  the  payment  of  the 
principal  thereof  on  or  before  maturity,  which  shall  not  ex- 
ceed forty  years  from  the  time  of  contracting  the  same,  and 
the  procedure,  for  voting,  issuing  and  selling  such  bonds 
shall,  except  in  so  far  as  the  same  shall  be  prescribed  in  such 
charters,  conform  to  general  laws  for  the  authorizing  and 
incurring  by  counties  of  bonded  indebtedness,  so  far  as  ap- 
plicable ;  provided,  further,  that  provisions  in  such  charters 
for  the  construction,  care,  maintenance,  repair,  inspection 
and  supervision  of  roads,  highways  and  bridges  for  which 


Art.  XI,  §  7I/2  CONSTITUTION  OP  1879.  396 

aid  from  the  state  is  granted,  shall  be  subject  to  such  regu- 
lations and  conditions  as  may  be  imposed  by  the  legislature. 

Whenever  any  county  has  framed  and  adopted  a  charter, 
and  the  same  shall  have  been  approved  by  the  legislature, 
as  herein  provided,  the  general  laws  adopted  by  the  legis- 
lature in  pursuance  of  sections  four  and  five  of  this  article, 
shall,  as  to  such  county,  be  superseded  by  said  charter  as  to 
matters  for  which,  under  this  section  it  is  competent  to 
make  provision  in  such  charter,  and  for  which  provision  is 
made  therein,  except  as  herein  otherwise  expressly  pro- 
vided ;  and  except  that  any  such  charter  shall  not  affect  the 
tenure  of  office  of  the  elective  officers  of  the  county,  or  of 
any  district,  townsliip  or  division  thereof,  in  office  at  the 
time  such  charter  goes  into  effect,  and  such  officers  shall 
continue  to  hold  their  respective  offices  until  the  expiration 
of  the  term  for  which  they  shall  have  been  elected,  unless 
sooner  removed  in  the  manner  provided  by  law. 

The  charter  of  any  county,  adopted  under  the  authority 
of  this  section,  may  be  surrendered  and  annulled  with  the 
assent  of  two-thirds  of  the  qualified  electors  of  such  county, 
voting  at  a  special  election,  held  for  that  purpose,  and  to  be 
ordered  and  called  by  the  board  of  supervisors  of  the  county 
upon  receiving  a  written  petition,  signed  and  certified  as 
hereinabove  provided  for  the  purposes  of  the  adoption  of 
charters,  requesting  said  board  to  submit  the  question  of  the 
surrender  and  annulment  of  such  charter  to  the  qualified 
electors  of  such  county,  and,  in  the  event  of  the  surrender 
jind  annulment  of  any  such  charter,  such  county  shall  there- 
after be  governed  under  general  laws  in  force  for  the  gov- 
ernment of  counties. 

The  provisions  of  this  section  shall  not  be  applicable  to 
any  county  that  is  consolidated  with  any  city.  (Amendment 
adopted  November  3,  1914.) 

[ORIGINAL  SECTION.]. 
Sec.  7%.  Any  county  may  frame  a  charter  for  its  own  gov- 
ernment consistent  with  and  subject  to  the  Constitution  (or,  hav- 
ing framed  such  a  charter,  may  frame  a  new  one,)  relating  to  the 
matters  hereinafter  in  this  section  specified,  and  none  other,  by 
causing  a  board  of  fifteen  freeholders,  who  have  been  for  at  least 
five  years  qualified  electors  thereof,  to  be  elected  by  the  qualified 


I 


397  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  71/2 

electors  of  said  county,  at  a  general  or  special  election.  Said 
board  of  freeholders  may  be  so  elected  in  pursuance  of  an  ordi- 
nance adopted  by  the  vote  of  three-fifths  of  all  the  members  of 
the  board  of  supervisors  of  such  county,  declaring  that  the  public 
interest  requires  the  election  of  such  board  for  the  purpose  of  pre- 
paring and  proposing  a  charter  for  said  county,  or  in  pursuance  of 
a  petition  of  qualified  electors  of  said  county  as  hereinafter  pro- 
vided. Such  petition,  signed  by  fifteen  per  centum  of  the  quali- 
fied electors  of  said  county,  computed  upon  the  total  number  of 
votes  cast  therein  for  all  candidates  for  governor  at  the  last  pre- 
ceding general  election  at  which  a  governor  was  elected,  praying 
for  the  election  of  a  board  of  fifteen  freeholders  to  prepare  and 
propose  a  charter  for  said  county,  may  be  filed  in  the  office  of  the 
county  clerk.  It  shall  be  the  duty  of  said  county  clerk,  within 
twenty  days  after  the  filing  of  said  petition,  to  examine  the 
same,  and  to  ascertain  from  the  record  of  the  registration  of  elec- 
tors of  the  county,  whether  said  petition  is  signed  by  the  requisite 
number  of  qualified  electors.  If  required  by  said  clerk,  the  board 
of  supervisors  shall  authorize  him  to  employ  persons  specially  to 
assist  him  in  the  work  of  examining  such  petition,  and  shall  pro- 
vide for  their  compensation.  Upon  the  completion  of  such  exami- 
nation, said  clerk  shall  forthwith  attach  to  said  petition  his  certifi- 
cate, properly  dated,  showing  the  result  thereof,  and  if,  by  said 
certificate,  it  shall  appear  that  said  petition  is  signed  by  the  requi- 
site number  of  qualified  electors,  said  clerk  shall  immediately  pre- 
sent said  petition  to  the  board  of  supervisors,  if  it  be  in  session, 
otherwise  at  its  next  regular  meeting  after  the  date  of  such  certifi- 
cate. Upon  the  adoption  of  such  ordinance,  or  the  presentation 
of  such  petition,  said  board  of  supervisors  shall  order  the  holding 
of  a  special  election  for  the  purpose  of  electing  such  board  of  free- 
holders, which  said  special  election  shall  be  held  not  less  than 
twenty  days  nor  more  than  sixty  days  after  the  adoption  of  the 
ordinance  aforesaid  or  the  presentation  of  said  petition  to  said 
board  of  supervisors;  provided,  that  if  a  general  election  shall 
occur  in  said  county  not  less  than  twenty  days  nor  more  than 
sixty  days  after  the  adoption  of  the  ordinance  aforesaid,  or  such 
presentation  of  said  petition  to  said  board  of  supervisors,  said 
board  of  freeholders  may  be  elected  at  such  general  election.  Can- 
didates for  election  as  members  of  said  board  of  freeholders  shall 
be  nominated  by  petition,  substantially  in  the  same  manner  as  may 
be  provided  by  general  law  for  the  nomination,  by  petition  of 
electors,  of  candidates  for  county  offices,  to  be  voted  for  at  gen- 
eral elections. 

It  shall  be  the  duty  of  said  board  of  freeholders,  within  one 
hundred  and  twenty  days  after  the  result  of  such  election  shall 
have  been  declared  by  said  board  of  supervisors,  to  prepare  and 
propose  a  charter  for  said  county,  which  shall  be  signed  in  dupli- 
cate by  the  members  of  said  board  of  freeholders,  or  a  majority 
of  them,  and  be  filed,  one  copy  in  the  office  of  the  county  clerk 
of  said  county  and  the  other  in  the  office  of  the  county  recorder 
thereof.  iSaid  board  of  supervisors  shall  thereupon  cause  said  pro- 
posed  charter   to   be   published  for   at  least   ten  times   in   a   daily 


Art.  XI,  §  71/2  CONSTITUTION  OF  1879.  398 

newspaper  of  general  circulation,  printed,  published  and  circulated 
in  said  county;  provided,  tliat  in  any  county  where  no  such  daily 
newspaper  is  printed,  published  and  circulated,  such  proposed  char- 
ter shall  be  published  for  at  least  three  times  in  at  least  one 
weekly  newspaper,  of  general  circulation,  printed,  published  and 
circulated  in  such  county;  and  provided,  that  in  any  county  where 
neither  such  daily  nor  such  weekly  newspaper  is  printed,  published 
and  circulated,  a  copy  of  such  proposed  charter  shall  be  posted 
by  the  county  clerk  in  three  public  places  in  said  county,  and 
on  or  near  the  entrance  to  at  least  one  public  schoolhouse  in  each 
school  district  in  said  county,  and  the  first  publication  or  the 
posting  of  such  proposed  charter  shall  be  made  within  fifteen  days 
after  the  filing  of  a  copy  thereof,  as  aforesaid,  in  the  office  of  the 
county  clerk.  Said  proposed  charter  shall  be  submitted  by  said 
board  of  supervisors  to  the  qualified  electors  of  said  county  at  a 
special  election  held  not  less  than  thirty  days  nor  more  than  sixty 
days  after  the  completion  of  such  publication,  or  after  such 
posting;  provided,  that  if  a  general  election  shall  occur  in  said 
county  not  less  than  thirty  days  nor  more  than  sixty  days  after 
the  completion  of  such  publication,  or  after  such  posting,  then 
such  proposed  charter  may  be  so  submitted  at  such  general  elec- 
tion. If  a  majority  of  said  qualified  electors,  voting  thereon  at 
such  general  or  special  election,  shall  vote  in  favor  of  such  pro- 
posed charter,  it  shall  be  deemed  to  be  ratified,  and  shall  be 
forthwith  submitted  to  the  legislature,  if  it  be  in  regular  session, 
otherwise  at  its  next  regular  session,  or  it  may  be  submitted 
to  the  legislature  in  extraordinary  session,  for  its  approval  or  re- 
jection as  a  whole,  without  power  of  alteration  or  amendment. 
Such  approval  may  be  made  by  concurrent  resolution,  and  if  ap- 
proved by  a  majority  vote  of  the  members  elected  to  each  house, 
such  charter  shall  become  the  charter  of  such  county  and  shall 
become  the  organic  law  thereof  relative  to  the  matters  therein 
provided,  and  supersede  any  existing  charter  framed  under  the  pro- 
visions of  this  section,  and  all  amendments  thereof,  and  shall  su- 
persede all  laws  inconsistent  with  such  charter  relative  to  the  mat- 
ters provided  in  such  charter.  A  copy  of  such  charter,  certified 
and  authenticated  by  the  chairman  and  clerk  of  the  board  of 
supervisors  under  the  seal  of  said  board  and  attested  b}'  the  county 
clerk  of  said  county,  setting  forth  the  submission  of  said  charter 
to  the  electors  of  said  county,  and  its  ratification  by  them,  shall, 
after  the  approval  of  such  charter  by  the  legislature,  be  made  in 
duplicate,  and  filed,  one  in  the  office  of  the  secretary  of  state  and 
the  other,  after  being  recorded  in  the  office  of  the  recorder  of  said 
county,  shall  be  filed  in  the  office  of  the  county  clerk  thereof,  and 
thereafter  all  courts  shall  take  judicial  notice  of  said  charter. 

The  charter,  so  ratified,  may  be  amended  by  proposals  therefor 
submitted  by  the  board  of  supervisors  of  the  county  to  the  quali- 
fied electors  thereof  at  a  general  or  special  election  held  not  less 
than  thirty  days  nor  more  than  sixty  days  after  the  publication 
of  such  proposals  for  ten  times  in  a  daily  newspaper  of  general 
circulation,  printed,  published  and  circulated  in  said  county,  pro- 
vided that  in  any  county  where  no  such  daily  newspaper  is  printed, 


399  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  71/2 

published  and  circulated,  such  proposed  charter  shall  be  published 
for  at  least  three  times  in  at  least  one  weekly  newspaper,  of  gen- 
eral circulation,  printed,  published,  and  circulated  in  such  county; 
provided,  that  in  any  county  where  neither  such  daily  nor  such 
weekly  newspaper  is  printed,  published  and  circulated,  a  copy  of 
such  proposed  charter  shall  be  posted  by  the  county  clerk  in  three 
public  places  in  said  county,  and  on  or  near  the  entrance  to  at 
least  one  public  schoolhouse  in  each  school  district  in  said  county. 
If  a  majority  of  such  qualified  electors  voting  thereon,  at  such 
general  or  special  election,  shall  vote  in  favor  of  any  such  proposed 
amendment  or  amendments,  or  any  amendment  or  amendments  pro- 
posed by  petition  as  hereinafter  provided,  such  amendment  or 
amendments  shall  be  deemed  to  be  ratified,  and  shall  be  forthwith 
submitted  to  the  legislature,  if  it  be  in  regular  session,  otherwise  at 
its  next  regular  session,  or  may  be  submitted  to  the  legislature  in 
extraordinary  session,  for  approval  or  rejection  as  a  whole,  without 
power  of  alteration  or  amendment,  and  if  approved  by  the  legisla- 
ture, as  herein  provided  for  the  approval  of  the  charter,  such  char- 
ter shall  be  amended  accordingly.  A  copy  of  such  amendment  or 
amendments  shall,  after  the  approval  thereof  by  the  legislature,  be 
made  in  duplicate,  and  shall  be  authenticated,  certified,  recorded 
and  filed  as  herein  provided  for  the  charter,  and  with  like  force 
and  effect.  Whenever  a  petition  signed  by  ten  per  centum  of  the 
qualified  electors  of  any  county,  computed  upon  the  total  number 
of  votes  cast  in  said  county  for  all  candidates  for  governor  at 
the  last  general  election,  at  which  a  governor  was  elected,  is  filed 
in  the  oSice  of  the  county  clerk  of  said  county,  petitioning  the 
board  of  supervisors  thereof  to  submit  any  proposed  amendment 
or  amendments  to  the  charter  of  such  county,  which  amendment  or 
amendments  shall  be  set  forth  in  full  in  such  petition,  to  the 
qualified  electors  thereof,  such  petition  shall  forthwith  be  exam- 
ined and  certified  by  the  county  clerk,  and  if  signed  by  the  requi- 
site number  of  qualified  electors  of  such  county,  shall  be  presented 
to  the  said  board  of  supervisors,  by  the  said  county  clerk,  as  here- 
inbefore provided  for  petitions  for  the  election  of  boards  of  free- 
holders. Upon  the  presentation  of  said  petition  to  said  board  of 
supervisors,  said  board  must  submit  the  amendment  or  amend- 
ments set  forth  therein  to  the  qualified  electors  of  said  county  at  a 
general  or  special  election  held  not  less  than  thirty  days  nor  more 
than  sixty  days  after  the  publication  or  posting  of  such  proposed 
amendment  or  amendments  in  the  same  manner  as  hereinbefore 
provided  in  the  case  of  the  sul)mission  of  any  proposed  amendment 
or  amendments  to  such  charter,  proposed  and  submitted  by  the 
board  of  supervisors.  In  submitting  any  such  charter,  or  amend- 
ments thereto,  any  alternative  article  or  proposition  may  be  pre- 
sented for  the  choice  of  the  electors,  and  may  be  voted  on  sep- 
arately without  prejudice  to  others. 

Every  special  election  held  under  the  provisions  of  this  section, 
for  the  election  of  boards  of  freeholders  or  for  the  submission  of 
proposed  charters,  or  any  amendment  or  amendments  thereto,  shall 
be  called  by  the  board  of  supervisors,  by  ordinance,  which  shall 
specify  the  purpose  and  time  of  such  election  and  shall  establish 


Art.  XI,  §  71/^  CONSTITUTION  OF  1879.  400 

the  election  precincts  and  designate  the  polling  places  therein,  and 
the  names  of  the  election  officers  for  each  such  precinct.  Such 
ordinance,  prior  to  such  election,  shall  be  published  five  times  in 
a  daily  newspaper,  or  twice  in  a  weekly  newspaper,  if  there  be  no 
such  daily  newspaper,  printed,  published  and  circulated  in  said 
county;  provided  that  if  no  such  daily  or  weekly  newspaper  be 
printed  or  published  in  such  county,  then  a  copy  of  such  ordi- 
nance shall  be  posted  by  the  county  clerk  in  three  public  places  in 
such  county  and  in  or  near  the  entrance  to  at  least  one  public 
schoolhouse  in  each  school  district  therein.  In  all  other  respects, 
every  such  election  shall  be  held  and  conducted,  the  returns  thereof 
canvassed  and  the  result  thereof  declared  by  the  board  of  super- 
visors in  the  same  manner  as  provided  by  law  for  general  elec- 
tions. Whenever  boards  of  freeholders  shall  be  elected,  or  any 
such  proposed  charter,  or  amendment  or  amendments  thereto,  sub- 
mitted, at  a  general  election,  the  general  laws  applicable  to  the 
election  of  county  officers  and  the  submission  of  propositions  to  the 
vote  of  electors,  shall  be  followed  in  so  far  as  the  same  may  be 
applicable  thereto. 

It  shall  be  competent,  in  all  charters,  framed  under  the  author- 
ity given  by  this  section  to  provide,  in  addition  to  any  other  pro- 
visions allowable  by  this  Constitution,  and  the  same  shall  provide, 
for  the  following  matters: 

1.  For  boards  of  supervisors  and  for  the  Constitution,  regula- 
tion and  government  thereof,  for  the  times  at  which  and  the  terms 
for  which  the  members  of  said  board  shall  be  elected,  for  the 
number  of  members,  not  less  than  three,  that  shall  constitute 
such  boards,  for  their  compensation  and  for  their  election,  either 
by  the  electors  of  the  counties  at  large,  or  by  districts;  provided, 
that  in  any  event  said  board  shall  consist  of  one  member  for  each 
district,  who  must  be  a  qualified  elector  thereof;  and 

2.  For  sheriffs,  county  clerks,  treasurers,  recorders,  license  col- 
lectors, tax  collectors,  public  administrators,  coroners,  surveyors, 
district  attorneys,  auditors,  assessors  and  superintendents  of 
schools,  for  the  election  or  appointment  of  said  officers,  or  any  of 
them,  for  the  times  at  which,  and  the  terms  for  which,  said  offi- 
cers, shall  be  elected  or  appointed,  and  for  their  compensation, 
or  for  the  fixing  of  such  compensation  by  boards  of  supervisors, 
and,  if  appointed,  for  the  manner  of  their  appointment;   and 

3.  For  the  number  of  justices  of  the  peace  and  constables  for 
each  township,  or  for  the  number  of  such  judges  and  other  officers 
of  such  inferior  courts  as  may  be  provided  by  the  Constitution  or 
general  law,  for  the  election  or  appointment  of  said  officers,  for  the 
times  at  which  and  the  terms  for  which  said  officers  shall  be 
elected  or  appointed,  and  for  their  compensation,  or  for  the  fixing 
of  such  compensation  by  boards  of  supervisors,  and  if  appointed, 
for  the  manner  of  their  appointment;   and 

4.  For  the  powers  and  duties  of  boards  of  supervisors  and  all 
other  county  officers,  for  their  removal  and  for  the  consolidation 
and  segregation  of  county  offices,  and  for  the  manner  of  filling- 
all  vacancies  occurring  therein;  provided,  that  the  provisions  of 
such  charters  relating  to  the  powers  and  duties  of  boards  of  super- 


I 
L 


401  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  71/^ 

visors  and   all   other  county   officers   shall  be   subject  to   and  con- 
trolled by  general  laws;  and 

5.  Tor  the  fixing  and  regulation  by  boards  of  supervisors,  by 
ordinance,  of  the  appointment  and  number  of  assistants,  deputies, 
clerks,  attaches  and  other  persons  to  be  employed,  from  time  to 
time,  in  the  several  offices  of  the  county,  and  for  the  prescribing 
and  regulating  by  such  boards  of  the  powers,  duties,  qualifications 
and  compensation  of  such  persons,  the  times  at  which,  and  terms 
for  which  they  shall  be  appointed,  and  the  manner  of  their  ap- 
pointment and  removal;  and 

6.  For  the  compensation  of  such  fish  and  game  wardens,  proba- 
tion and  other  officers  as  may  be  provided  by  general  law,  or  for 
the  fixing  of  such  compensation  by  boards  of  supervisors. 

All  elective  officers  of  countie-s,  and  of  townships,  of  road  dis- 
tricts and  of  highway  construction  divisions  therein  shall  be  nomi- 
nated and  elected  in  the  manner  provided  by  general  laws  for  the 
nomination  and  election  of  such  officers. 

All  charters  framed  under  the  authority  given  by  this  section, 
in  addition  to  the  matters  hereinabove  specified,  may  provide  as 
follows: 

For  officers  other  than  those  required  by  the  Constitution  and 
laws  of  the  state,  or  for  the  creation  of  any  or  all  of  such  offices 
by  boards  of  supervisors,  for  the  election  or  appointment  of  per- 
sons to  fill  such  offices,  for  the  manner  of  such  appointment,  for 
the  times  at  which  and  the  terms  for  which  such  persons  shall  be 
80  elected  or  appointed,  and  for  their  compensation,  or  for  the 
fixing  of  such  compensation  by  boards  of  supervisors. 

For  offices  hereafter  created  by  this  Constitution  or  by  general 
law,  for  the  election  or  appointment  of  persons  to  fill  such  offices, 
for  the  manner  of  such  appointment,  for  the  times  at  which  and 
the  terms  for  which  such  persons  shall  be  so  elected  or  appointed, 
and  for  their  compensation,  or  for  the  fixing  of  such  compensation 
by  boards  of  supervisors. 

For  the  formation,  in  such  counties,  of  road  districts  for  the 
care,  maintenance,  repair,  inspection  and  supervision  only  of  roads, 
highways  and  bridges;  and  for  the  formation,  in  such  counties,  of 
highway  construction  divisions  for  the  construction  only  of  roads, 
highways  and  bridges;  for  the  inclusion  in  any  such  district  or 
division,  of  the  whole  or  any  part  of  any  incorporated  city  or 
town,  ui>on  ordinance  passed  by  such  incorporated  city  or  town 
authorizing  the  same,  and  upon  the  assent  to  such  inclusion  by  a 
majority  of  the  qualified  electors  of  such  incorporated  city  or 
town,  or  portion  thereof,  proposed  to  be  so  included,  at  an  elec- 
tion held  for  that  purpose;  for  the  organization,  government, 
powers  and  jurisdiction  of  such  districts  and  divisions,  and  for  rais- 
ing revenue  therein,  for  such  purposes,  by  taxation,  upon  the 
assent  of  a  majority  of  the  qualified  electors  of  such  districts  or 
divisions,  voting  at  an  election  to  be  held  for  that  purpose;  for  the 
incurring  of  indebtedness  therefor  by  such  counties,  districts  or 
divisions  for  such  purposes  respectively,  by  the  issuance  and  sale, 
by  the  counties,  of  bonds  of  such  counties,  districts  or  divisions, 
Constitution — 2G 


Art.  XI,  §  71/2  CONSTITUTION  OF  1879.  402 

and  the  expenditure  of  the  proceeds  of  the  sale  of  such  bonds,  and 
for  levjdng  and  collecting  taxes  against  the  property  of  the  coun- 
ties, districts  or  divisions,  as  the  case  may  be,  for  the  payment  of 
the  principal  and  interest  of  such  indebtedness  at  maturity;  pro- 
vided, that  any  such  indebtedness  shall  not  be  incurred  without 
the  assent  of  two-thirds  of  the  qualified  electors  of  the  county, 
district  or  division,  as  the  case  may  be,  voting  at  an  election  to  be 
held  for  that  purpose,  nor  unless  before  or  at  the  time  of  incurring 
such  indebtedness  provision  shall  be  made  for  the  collection  of  an 
annual  tax  sufficient  to  pay  the  interest  on  such  indebtedness  as  it 
falls  due,  and  also  for  a  sinking  fund  for  the  payment  of  the  prin- 
cipal thereof  on  or  before  maturity,  which  shall  not  exceed  forty 
years  from  the  time  of  contracting  the  same,  and  the  procedure 
for  voting,  issuing  and  selling  such  bonds  shall,  except  in  so  far 
as  the  same  shall  be  prescribed  in  such  charters,  conform  to  gen- 
eral laws  for  the  authorizing  and  incurring  bj'  counties  of  bonded 
indebtedness,  so  far  as  applicable;  provided,  further,  that  provi- 
sions in  such  charters  for  the  construction,  care,  maintenance,  re- 
pair, inspection  and  supervision  of  roads,  highways  and  bridges 
for  which  aid  from  the  state  is  granted,  shall  be  subject  to  such 
regulations  and  conditions  as  may  be  imposed  by  the  legislature. 

Whenever  any  county  has  framed  and  adopted  a  charter,  and 
the  same  shall  have  been  approved  by  the  legislature,  as  herein 
provided,  the  general  laws  adopted  by  the  legislature  in  pursuance 
of  sections  4  and  5  of  this  article,  shall,  as  to  such  county,  be 
superseded  by  said  charter  as  to  matters  for  which,  under  this  sec- 
tion it  is  competent  to  make  provision  in  such  charter,  and  for 
which  provision  is  made  therein,  except  as  herein  otherwise  ex- 
pressly provided,  and  excejit  that  any  such  charter  shall  not  affect 
the  tenure  of  the  office  of  the  elective  officers  of  the  county,  or  of 
any  district,  township  or  division  thereof,  in  office  at  the  time  such 
charter  goes  into  effect,  and  such  officers  shall  continue  to  hold 
their  respective  offices  until  the  expiration  of  the  term  for  which 
they  shall  have  been  elected,  unless  sooner  removed  in  the  manner 
provided  by  law. 

The  charter  of  any  county,  adopted  under  the  authority  of  this 
section,  may  be  surrendered  and  annulled  with  the  assent  of  two- 
thirds  of  the  qualified  electors  of  such  county,  voting  at  a  special 
election,  held  for  that  purpose,  and  to  be  ordered  and  called  by  the 
board  of  supervisors  of  the  county  upon  receiving  a  written  peti- 
tion, signed  and  certified  as  hereinabove  provided  for  the  purposes 
of  the  adoption  of  charters,  requesting  said  board  to  submit  the 
question  of  the  surrender  and  annulment  of  such  charter  to  the 
qualified  electors  of  such  county,  and,  in  the  event  of  the  surren- 
der and  annulment  of  any  sucli  charter,  such  county  shall  there- 
after be  governed  under  general  laws  in  force  for  the  government 
of  counties. 

The  provisions  of  this  section  shall  not  be  applicable  to  any 
county  that  is  consolidated  with  any  city.  (New  section  added 
by  amendment  approved  October  10,  1911.) 


\ 


403  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  8 

City  or  city  and  county  charters,  how  framed  and  ratified. 

Sec.  8.  Any  city  or  city  and  county  containing  a  popu- 
lation of  more  than  three  thousand  five  hundred  inhabitants, 
as  ascertained  by  the  last  preceding  census  taken  under  the 
authority  of  the  Congress  of  the  United  States  or  of  the 
legislature  of  California,  may  form  a  charter  for  its  own 
government,  consistent  with  and  subject  to  this  Constitu- 
tion; and  any  city,  or  city  and  county  having  adopted  a 
charter  may  adopt  a  new  one.  Any  such  charter  shall  be 
framed  by  a  board  of  fifteen  freeholders  chosen  by  the 
electors  of  such  city  at  any  general  or  special  election ;  but 
no  person  shall  be  eligible  as  a  candidate  for  such  board  un- 
less he  shall  have  been,  for  the  five  years  next  preceding, 
an  elector  of  said  city.  An  election  for  choosing  freehold- 
ers may  be  called  by  a  two-thirds  vote  of  the  legislative 
body  of  such  city,  and,  on  presentation  of  a  petition  signed 
by  not  less  than  fifteen  per  cent  of  the  registered  electors 
of  such  city,  the  legislative  body  shall  call  such  election  at 
any  time  not  less  than  thirty  nor  more  than  sixty  days  from 
date  of  the  filing  of  the  petition.  Any  such  petition  !>hall 
be  verified  by  the  authority  having  charge  of  the  registra- 
tion records  of  such  city  or  city  and  county  and  the  ex- 
penses of  such  verification  shall  be  provided  by  the  legisla- 
tive body  thereof.  Candidates  for  the  office  of  freeholders 
shall  be  nominated  either  in  such  manner  as  may  be  pro- 
vided for  the  nomination  of  officers  of  the  municipal  gov- 
ernment or  by  petition,  substantially  in  the  same  manner 
as  may  be  provided  by  general  laws  for  the  nomination  by 
petition  of  electors  of  candidates  for  public  offices  to  be 
voted  for  at  general  elections.  The  board  of  freeholders 
shall,  within  one  hundred  and  twenty  days  after  the  result 
of  the  election  is  declared,  prepare  and  propose  a  charter 
for  the  government  of  such  city ;  but  the  said  period  of  one 
hundred  and  twenty  days  may  with  the  consent  of  the  legis- 
lative body  of  such  city  be  extended  by  such  board  not  ex- 
ceeding a  total  of  sixty  days.  The  charter  so  prepared  shall 
be  signed  by  a  majority  of  the  board  of  freeholders  and 
filed,  in  the  office  of  the  clerk  of  the  legislative  body  of  said 
city.     The  legislative  body  of  said  city  shall  within  fifteen 


Art.  XI,  §  8  CONSTITUTION  OF  1879.  404 

days  after  such  filing  cause  such  charter  to  be  published 
once  in  the  official  paper  of  said  city  ;  (or  in  case  there  be  no 
such  paper,  in  a  paper  of  general  circulation)  ;  and  shall 
cause  copies  of  such  charter  to  be  printed  in  convenient 
pamphlet  form,  and  shall,  until  the  date  fixed  for  the  elec- 
tion upon  such  charter,  advertise  in  one  or  more  papers  of 
general  circulation  published  in  said  city  a  notice  that  such 
copies  may  be  had  upon  application  therefor.  Such  charter 
shall  be  submitted  to  the  electors  of  such  city  at  a  date  to 
be  fixed  by  the  board  of  freeholders,  before  such  filing  and 
designated  on  such  charter,  either  at  a  special  election  held 
not  less  than  sixty  days  from  the  completion  of  the  publica- 
tion of  such  charter  as  above  provided,  or  at  the  general 
election  next  following  the  expiration  of  said  sixty  days. 
If  a  majority  of  the  qualified  voters  voting  thereon  at  such 
general  or  special  election  shall  vote  in  favor  of  such  pro- 
posed charter,  it  shall  be  deemed  to  be  ratified,  and  shall  be 
submitted  to  the  legislature,  if  then  in  session,  or  at  the  next 
regular  or  special  session  of  the  legislature.  The  legislature 
shall  by  concurrent  resolution  approve  or  reject  such  char- 
ter as  a  whole,  without  power  of  alteration  or  amendment ; 
and  if  approved  by  a  majority  of  the  members  elected  to 
each  house  it  shall  become  the  organic  law  of  such  city  or 
city  and  county,  and  supersede  any  existing  charter  and  all 
laws  inconsistent  therewith.  One  copy  of  the  charter  so 
ratified  and  approved  shall  be  filed  with  the  secretary  of 
state,  one  with  the  recorder  of  the  county  in  which  such  city 
is  located,  and  one  in  the  archives  of  the  city ;  and  there- 
after the  courts  shall  take  judicial  notice  of  the  provisions 
of  such  charter.  The  charter  of  any  city  or  city  and  county 
may  be  amended  by  proposals  therefor  submitted  by  the 
legislative  body  of  the  city  on  its  own  motion  or  on  petition 
signed  by  fifteen  per  cent  of  the  registered  electors,  or  both. 
Such  proposals  shall  be  submitted  to  the  electors  only  dur- 
ing the  six  months  next  preceding  a  regular  session  of  the 
legislature  or  thereafter  and  before  the  final  adjournment  of 
that  session  and  at  either  a  special  election  called  for  that 
purpose  or  at  any  general  or  special  election.  Petitions  for 
the  submission  of  any  amendment  shall  be  filed  with  the 


405  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  8 

legislatiA^e  body  of  the  city  or  city  and  county  not  less  than 
sixty  days  prior  to  the  general  election  next  preceding  a 
regular  session  of  the  legislature.  The  signatures  on  such 
petitions  shall  be  verified  by  the  authority  having  charge  of 
the  registration  records  of  such  city  or  city  and  county,  and 
the  expenses  of  such  verification  shall  be  provided  by  the 
legislative  body  thereof.  If  such  petitions  have  a  sufficient 
number  of  signatures  the  legislative  body  of  the  city  or  city 
and  county  shall  so  submit  the  amendment  or  amendments 
so  proposed  to  the  electors.  Amendments  proposed  by  the 
legislative  body  and  amendments  proposed  by  petition  of 
the  electors  may  be  submitted  at  the  same  election.  The 
amendments  so  submitted  shall  be  advertised  in  the  same 
manner  as  herein  provided  for  the  advertisement  of  a  pro- 
posed charter,  and  the  election  thereon  held  at  a  date  to  be 
fixed  by  the  legislative  body  of  such  eity,  not  less  than  forty 
and  not  more  than  sixty  days  after  the  completion  of  the 
advertising  in  the  official  paper.  If  a  majority  of  the  quali- 
fied voters  voting  on  any  such  amendment  vote  in  favor 
thereof  it  shall  be  deemed  ratified,  and  shall  be  submitted 
to  the  legislature  at  the  regular  session  next  following  such 
election ;  and  approved  or  rejected  without  power  of  altera- 
tion in  the  same  manner  as  herein  provided  for  the  approval 
or  rejection  of  a  charter.  In  submitting  any  such  charter 
or  amendment  separate  propositions,  whether  alternative  or 
conflicting,  or  one  included  within  the  other,  may  be  sub- 
mitted at  the  same  time  to  be  voted  on  by  the  electors  sep- 
arately, and,  as  between  those  so  related,  if  more  than  one 
receive  a  majority  of  the  votes,  the  proposition  receiving 
the  larger  number  of  votes  shall  control  as  to  all  matters  in 
conflict.  It  shall  be  competent  in  any  charter  framed  under 
the  authority  of  this  section  to  provide  that  the  municipality 
governed  thereunder  may  make  and  enforce  all  laws  and 
regulations  in  respect  to  municipal  affairs,  subject  only  to 
the  restrictions  and  limitations  provided  in  their  several 
charters  and  in  respect  to  other  matters  they  shall  be  sub- 
ject to  general  laws.  It  shall  be  competent  in  any  charter 
to  provide  for  the  division  of  the  city  or  city  and  county 
governed  thereby  into  boroughs  or  districts,  and  to  provide 


Art.  XI,  §  8  CONSTITUTION  OF  1879.  406 

that  each  such  borough  or  district  may  exercise  such  gen- 
eral or  special  municipal  powers,  and  to  be  administered  in 
such  manner,  as  may  be  provided  for  each  such  borough  or 
district  in  the  charter  of  the  city  or  city  and  county. 

The  percentages  of  the  registered  electors  herein  required 
for  the  election  of  freeholders  or  the  submission  of  amend- 
ments to  charters  shall  be  calculated  upon  the  total  vote 
cast  in  the  city  or  city  and  county  at  the  last  preceding  gen- 
eral state  election;  and  the  qualified  electors  shall  be  those 
whose  names  appear  upon  the  registration  records  of  the 
same  or  preceding  year.  The  election  laws  of  such  city  or 
city  and  county  shall,  so  far  as  applicable  govern  all  elec- 
tions held  under  the  authority  of  this  section.  (Amend- 
ment adopted  November  3,  1914.) 

[AMENDMENT  OF  1911.] 
See.  8.  Any  city  containing  a  population  of  more  than  three 
thousand  five  hundred  inhabitants  as  ascertained  and  established 
by  the  last  preceding  census,  taken  under  the  direction  of  the 
Congress  of  the  United  States,  or  by  a  census  of  said  city,  taken, 
subsequent  to  the  aforesaid  census,  under  the  direction  of  the  legis- 
lative body  thereof,  under  laws  authorizing  the  taking  of  the  cen- 
sus of  cities,  may  frame  a  charter  for  its  own  government,  con- 
sistent with,  and  subject  to,  the  Constitution,  (or,  having  framed 
such  a  charter,  may  frame  a  new  one),  by  causing  a  board  of 
fifteen  freeholders,  who  shall  have  been,  for  at  least  five  years, 
qualified  electors  thereof,  to  be  elected  by  the  qualified  electors 
of  said  city,  at  a  general  or  special  municipal  election.  Said  board 
of  freeholders  may  be  so  elected  in  pursuance  of  an  ordinance 
adopted  by  a  vote  of  two-thirds  of  all  the  members  of  the  council, 
or  other  legislative  body,  of  such  city,  declaring  that  the  public 
interest  requires  the  election  of  such  board  for  the  purpose  of  pre- 
paring and  proposing  a  charter  for  said  city,  or  in  pursuance  of 
a  petition  of  qualified  electors  of  said  city,  as  hereinafter  pro- 
vided. Such  petition,  signed  by  fifteen  per  centum  of  the  qualified 
electors  of  said  city  computed  upon  the  total  number  of  votes  cast 
therein  for  all  candidates  for  governor  at  the  last  preceding  gen- 
eral election  at  which  a  governor  was  elected,  praying  for  the 
election  of  a  board  of  fifteen  freeholders  to  prepare  and  propose 
a  charter  for  said  city,  may  be  filed  in  the  office  of  the  city  clerk 
thereof.  It  shall  be  the  duty  of  said  city  clerk,  within  twenty 
days  after  the  filing  of  said  petition,  to  examine  the  same  and  to 
ascertain  from  the  record  of  the  registration  of  electors  of  the 
county,  showing  the  registration  of  electors  of  said  city,  whether 
the  petition  is  signed  by  the  requisite  number  of  qualified  electors 
of  such  city.  If  required  by  said  clerk,  the  council,  or  other  legis- 
lative  body,   of   said   city   shall   authorize   him  to   employ   persons 


407  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  8 

Bpecially  to  assist  him  in  the  work  of  examining  such  petition, 
and  shall  provide  for  their  compensation.  Upon  the  completion 
of  sucu  examination,  said  clerk  shall  forthwith  attach  to  said  peti- 
tion his  certificate,  properly  dated,  showing  the  result  thereof,  and 
if,  by  said  certificate,  it  shall  appear  that  said  petition  is  signed 
by  the  requisite  number  of  qualified  electors,  said  clerk  shall  pre- 
sent the  said  petition  to  said  council,  or  other  legislative  body,  at 
its  next  regular  meeting  after  the  date  of  such  certificate.  Upon 
the  adoption  of  such  ordinance,  or  the  presentation  of  such  petition, 
said  council,  or  other  legislative  body,  shall  order  the  holding  of 
a  special  election  for  the  purpose  of  electing  such  board  of  free- 
holders, which  said  special  election  shall  be  held  not  less  than 
twenty  daj's,  nor  more  than  sixty  days  after  the  adoption  of  the 
ordinance  aforesaid,  or  the  presentation  of  said  petition  to  said 
council,  or  other  legislative  body;  provided,  that  if  a  general  mu- 
nicipal election  shall  occur  in  said  city  not  less  than  twenty  days, 
nor  more  than  sixty  days,  after  the  adoption  of  the  ordinance 
aforesaid,  or  the  presentation  of  said  petition  to  said  council,  or 
other  legislative  body,  said  board  of  freeholders  ma}^  be  elected 
at  such  general  municipal  election.  Candidates  for  election  as 
members  of  said  board  of  freeholders  shall  be  nominated  by  peti- 
tion, substantially  in  the  same  manner  as  may  be  provided  by 
general  laws  for  the  nomination  by  petition  of  electors  of  candi- 
dates for  public  offices  to  be  voted  for  at  general  elections. 

It  shall  be  the  duty  of  said  board  of  freeholders,  within  one 
hundred  and  twenty  days  after  the  result  of  such  election  shall 
have  been  declared  by  said  council,  or  other  legislative  body,  to 
prepare  and  propose  a  charter  for  said  city,  which  shall  be  signed 
in  duplicate  by  the  members  of  said  board  of  freeholders,  or  a  ma- 
jority of  them,  and  be  filed,  one  copy  in  the  office  of  the  city  clerk 
of  said  city,  and  the  other  in  the  office  of  the  county  recorder  of 
the  county  in  which  said  city  is  situated.  Said  council,  or  other 
legislative  body,  shall,  thereupon,  cause  said  proposed  charter  to 
be  published  for  at  least  ten  times,  in  a  daily  newspaper  of  general 
circulation,  printed,  published  and  circulated  in  said  city;  pro- 
vided, that  in  any  city  where  no  such  daily  newspaper  is  printed, 
published  and  circulated,  such  proposed  charter  shall  be  published, 
for  at  least  three  times,  in  at  least  one  weekly  newspaper  of  gen- 
eral circulation,  printed,  published  and  circulated  in  said  city,  and, 
in  any  event,  the  first  publication  of  such  proposed  charter  shall 
be  made  within  fifteen  days  after  the  filing  of  a  copy  thereof,  as 
aforesaid,  in  the  office  of  the  city  clerk.  Such  proposed  charter 
shall  be  submitted  by  said  council,  or  other  legislative  body,  to 
the  qualified  electors  of  said  city  at  a  special  election  held  not  less 
than  twenty  days,  nor  more  than  forty  days,  after  the  completion 
of  such  publication;  provided,  that  if  a  general  municipal  election 
shall  occur  in  said  city  not  less  than  twenty  days,  nor  more  than 
forty  days,  after  the  completion  of  such  publication,  then  such 
proposed  charter  may  be  so  submitted  at  such  general  election.  If 
a  majority  of  such  qualified  electors  voting  thereon  at  such  general 
or  special  election  shall  vote  in  favor  of  such  proposed  charter,  it 
shall  be  deemed  to  be  ratified,  and  shall  be  submitted  to  the  legisla- 


Art.  XI,  §  8  CONSTITUTION  OF  1879.  408 

ture,  if  it  be  in  regular  session,  otherwise  at  its  next  regular  ses- 
sion, or  it  may  be  submitted  to  the  legislature  in  extraordinary- 
session,  for  its  approval  or  rejection  as  a  whole,  without  power 
of  alteration  or  amendment.  Such  approval  may  be  made  by  con- 
current resolution,  and  if  approved  by  a  majority  vote  of  the  mem- 
bers elected  to  each  house,  such  charter  shall  become  the  charter 
of  such  city,  or,  if  such  city  be  consolidated  with  a  county,  then 
of  such  city  and  county,  and  shall  become  the  organic  law  thereof, 
and  supersede  any  existing  charter,  (whether  framed  under  the 
provisions  of  this  sectidji  of  the  Constitution  or  not,)  and  all 
amendments  thereof,  and  all  laws  inconsistent  with  such  charter. 
A  copy  of  such  charter,  certified  by  the  mayor,  or  other  chief  ex- 
ecutive officer  of  said  city,  and  authenticated  under  the  seal  of 
such  city,  setting  forth  the  submission  of  such  charter  to  the  elec- 
tors of  said  city,  and  its  ratification  by  them,  shall,  after  the  ap- 
proval of  such  charter  by  the  legislature,  be  made  in  duplicate  and 
deposited,  one  in  the  office  of  the  secretary  of  state  and  the  other, 
after  being  recorded  in  the  office  of  the  recorder  of  the  county  in 
which  such  city  is  situated,  shall  be  deposited  in  the  archives  of 
the  city,  and  thereafter  all  courts  shall  take  judicial  notice  of  said 
charter. 

The  charter,  so  ratified,  may  be  amended  by  proposals  therefor 
submitted  by  the  council,  or  other  legislative  body  of  the  city, 
to  the  qualified  electors  thereof  at  a  general  or  special  municipal 
election  held  at  intervals  of  not  less  than  two  years  (except  that 
charter  amendments  may  be  submitted  at  a  general  municipal  elec- 
tion at  an  interval  of  less  than  two  years  after  the  last  election 
on  charter  amendments  provided  that  no  other  election  on  charter 
amendments  has  been  held  since  the  beginning  of  the  last  regular 
session  of  the  state  legislature  or  shall  be  held  prior  to  the  next 
regular  session  of  the  state  legislature),  and  held  not  less  than 
twenty  days,  nor  more  than  forty  days  after  the  completion  of  the 
publication  of  such  proposals  for  ten  times  in  a  daily  newspaper 
of  general  circulation,  printed,  published  and  circulated  in  said 
city,  or  for  three  times  in  at  least  one  weekly  newspaper  of  gen- 
eral circulation,  printed,  published  and  circulated  in  said  city,  if 
there  be  no  such  daily  newspaper.  If  a  majority  of  such  qualified 
electors  voting  thereon  at  such  general  or  special  election  shall 
vote  in  favor  of  any  such  proposed  amendment  or  amendments,  or 
any  amendment  or  amendments  proposed  by  petition,  as  herein- 
after provided,  such  amendment  or  amendments  shall  be  deemed 
to  be  ratified,  and  shall  be  forthwith  submitted  to  the  legislature, 
if  it  be  in  regular  session,  otherwise  at  its  next  regular  session, 
or  may  be  submitted  to  the  legislature  in  extraordinary  session, 
for  approval  or  rejection  as  a  whole,  without  power  of  alteration 
or  amendment,  and  if  approved  by  the  legislature,  as  herein  pro- 
vided for  the  approval  of  the  charter,  such  charter  shall  be 
amended  accordingly.  A  copy  of  such  amendment  or  amendments 
shall,  after  the  approval  thereof  by  the  legislature,  be  made  in 
duplicate,  and  shall  be  authenticated,  certified,  recorded  and  filed 
as  herein  provided  for  the  charter,  and  with  like  force  and  effect. 
Whenever  a  petition  signed  by  fifteen  per  centum  of  the  qualified 


409  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  8 

electors  of  the  city,  computed  upon  the  total  number  of  votes  cast 
therein  for  all  candidates  for  governor  at  the  last  preceding  gen- 
eral election  at  which  a  governor  was  elected,  is  filed  in  the  office 
of  the  city  clerk  of  said,  city,  petitioning  the  council,  or  other 
legislative  body  thereof,  to  submit  any  proposed  amendment  or 
amendments  to  the  charter  of  such  city,  which  amendment  or 
amendments  shall  be  set  forth  in  full  in  such  petition,  to  the  quali- 
fied electors  thereof,  such  petition  shall  forthwith  be  examined  and 
certified  by  the  city  clerk,  and  if  signed  by  the  requisite  number 
of  qualified  electors  of  said  city,  it  shall  be  presented  to  the  said 
council,  or  other  legislative  body,  by  the  said  city  clerk,  as  herein- 
before provided  for  petitions  for  the  election  of  boards  of  free- 
holders. Upon  the  presentation  of  said  petition  to  said  council, 
or  other  legislative  body,  said  council,  or  other  legislative  body, 
must  submit  the  amendment  or  amendments  set  forth  in  said  peti- 
tion to  the  qualified  electors  of  said  city,  at  a  general  or  special 
municipal  election,  held  not  less  than  twenty,  nor  more  than  forty, 
days  after  the  completion  of  the  publication  of  such  proposed 
amendment  or  amendments,  in  the  same  manner  as  hereinbefore 
provided  in  the  case  of  the  submission  of  any  proposed  amendment 
or  amendments  to  S'lch  charter,  proposed  and  submitted  by  the 
council,  or  other  legislative  body.  The  first  publication  of  any 
proposed  amendment  or  amendments  to  such  charter  so  proposed 
by  petition  shall  be  made  within  fifteen  days  after  the  aforesaid 
presentation  of  said  petition  to  said  council,  or  other  legislative 
body.  In  submitting  any  such  charter,  amendment  or  amendments 
thereto,  any  alternative  article  or  proposition  may  be  presented 
for  the  choice  of  the  electors,  and  may  be  voted  on  separately 
without  prejudice  to  others. 

Every  special  election  held  in  any  city  under  the  provisions  of 
this  section,  for  the  election  of  a  board  of  freeholders,  or  for  the 
submission  of  any  proposed  charter  or  any  amendment  or  amend- 
ments thereto,  shall  be  called  by  the  council,  or  other  legislative 
body  thereof,  by  ordinance,  which  shall  specify  the  purpose  and 
time  of  such  election,  and  shall  establish  the  election  precincts  and 
designate  the  polling  places  therein,  and  the  names  of  the  election 
officers  for  each  such  precinct.  Such  ordinance  shall,  prior  to  such 
election,  be  published  five  times  in  a  daily  newspaper,  or  twice  in 
a  weekly  newspaper,  if  there  be  no  such  daily  newspaper  printed, 
published  and  circulated  in  said  city.  Such  election  shall  be  held 
and  conducted,  the  returns  thereof  canvassed,  and  the  result  there- 
of declared  by  the  council,  or  other  legislative  body  of  such  city 
in  the  manner  that  is  now  or  may  be  hereafter  provided  by  general 
law  for  such  elections  in  the  particulars  wherein  such  provision 
IS  now  or  may  hereafter  be  made  therefor,  and  in  all  other  respects 
in  the  manner  provided  by  law  for  general  municipal  elections, 
in  so  far  as  the  same  may  be  applicable  thereto. 

Whenever  any  board  of  freeholders  shall  be  elected,  or  any  such 
proposed  charter  or  amendment  or  amendments  thereto  shall  be 
submitted  at  a  general  municipal  election,  the  laws  governing  the 
election  of  city  officers,  or  the  submission  of  propositions  to  the 
vote  of  electors,  shall  be  followed  in  so  far  as  the  same  may  be 
applicable  thereto  and  not  inconsistent  herewith. 


Art.  XI,  §  8  CONSTITUTION  OF  1879.  410 

It  shall  be  competent  in  any  charter  framed  by  any  city  under 
the  authority  given  in  this  section,  or  by  amendment  to  such  char- 
ter, to  provide,  in  addition  to  those  provisions  allowed  by  this 
Constitution  and  by  the  laws  of  the  state,  for  the  establishment  of 
a  borough  system  of  government  for  the  whole  or  any  part  of  the 
territory  of  such  city,  by  which  one  or  more  districts  may  be  cre- 
ated therein,  which  districts  shall  be  known  as  boroughs,  and 
which  shall  exercise  such  special  municipal  powers  as  may  be 
granted  by  such  charter,  and  for  the  organization,  regulation, 
government  and  jurisdiction  of  such  boroughs. 

All  the  provisions  of  this  section  relating  to  the  city  clerk  shall, 
in  any  city  and  county,  be  deemed  to  relate  to  the  clerk  of  the 
legislative  body  thereof.     (Amendment  approved  October  10,  1911.) 

[AMENDMENT  OF  1906.] 
Sec.  8.  Any  city  containing  a  population  of  more  than  three 
thousand  five  hundred  inhabitants  may  frame  a  charter  for  its  own 
government,  consistent  with  and  subject  to  the  Constitution,  (or, 
having  framed  such  a  charter,  may  frame  a  new  one),  by  causing 
a  board  of  fifteen  freeholders,  who  shall  have  been  for  at  least 
five  years  qualified  electors  thereof,  to  be  elected  by  the  qualified 
voters  of  said  city  at  any  general  or  special  election,  whose  duty 
it  shall  be,  within  ninety  days  after  such  election,  to  prepare  and 
propose  a  charter  for  such  city,  which  shall  be  signed  in  duplicate 
by  the  members  of  such  board,  or  a  majority  of  them,  and  returned, 
one  copy  to  the  mayor  thereof,  or  other  chief  executive  officer  of 
such  city,  and  the  other  to  the  recorder  of  the  county.  Such  pro- 
posed charter  shall  then  be  published  in  two  daily  newspapers  of 
general  circulation  in  such  city,  for  at  least  twenty  days,  and  the 
first  publication  shall  be  made  within  twenty  days  after  the  com- 
pletion of  the  charter;  provided,  that  in  cities  containing  a  popu- 
lation of  not  more  than  ten  thousand  inhabitants,  such  proposed 
charter  shall  be  published  in  one  such  daily  newspaper;  and  within 
thirty  days  after  such  publication  it  shall  be  submitted  to  the 
qualified  electors  of  said  city  at  a  general  or  special  election,  and 
if  a  majority  of  such  qualified  electors  voting  thereon  shall  ratify 
the  same,  it  shall  thereafter  be  submitted  to  the  legislature  for  its 
approval  or  rejection  as  a  whole,  without  power  of  alteration  or 
amendment.  Such  approval  may  be  made  by  concurrent  resolution, 
and  if  approved  by  a  majority  vote  of  the  members  elected  to  each 
house,  it  shall  become  the  charter  of  such  city,  or,  if  such  city  be 
consolidated  with  a  county,  then  of  such  city  and  county,  and  shall 
become  the  organic  law  thereof,  and  supersede  any  existing  charter, 
(whether  framed  under  the  provisions  of  this  section  of  the  Con- 
stitution or  not),  and  all  amendments  thereof,  and  all  laws  incon- 
sistent with  such  charter.  A  copy  of  such  charter,  certified  by  the 
mayor,  or  chief  executive  officer,  and  authenticated  by  the  seal  of 
such  city,  setting  forth  the  submission  of  such  charter  to  the  elec- 
tors, and  its  ratification  by  them,  shall  after  the  approval  of  such 
charter  by  the  legislature,  be  made  in  duplicate,  and  deposited,  one 
in  the  office  of  the  secretary  of  state,  and  the  other,  after  being 
recorded  in  said  recorder's  office  shall  be  deposited  in  the  archives 


I 


411  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  8 

of  the  city,  and  thereafter  all  courts  shall  take  judicial  notice  of 
said  charter.  The  charter,  so  ratified,  may  be  amended  at  inter- 
vals of  not  less  than  two  years  by  proposals  therefor,  submitted 
by  the  legislative  authority  of  the  city  to  the  qualified  electors 
thereof  at  a  general  or  special  election  held  at  least  forty  days 
after  the  publication  of  such  proposals  for  twenty  days  in  a  daily 
newspaper  of  general  circulation  in  such  city,  and  ratified  by  a 
majority  of  the  electors,  voting  thereon,  and  approved  by  the  legis- 
lature as  herein  provided  for  the  approval  of  the  charter.  When- 
ever fifteen  per  cent  of  the  qualified  voters  of  the  city  shall  peti- 
tion the  legislative  authority  thereof  to  submit  any  proposed 
amendment  or  amendments  to  said  charter  to  the  qualified  voters 
thereof  for  approval,  the  legislative  authority  thereof  must  sub- 
mit the  same.  In  submitting  any  such  charter,  or  amendments 
thereto,  any  alternative  article  or  proposition  may  be  presented 
for  the  choice  of  the  voters,  and  may  be  voted  on  separately  with- 
out prejudice  to  others.     (Amendment  adopted  November  6,  1906.) 

[AMENDMENT  OF  1902.] 
See.  8.  Any  city  containing  a  population  of  more  than  three 
thousand  five  hundred  inhabitants  may  frame  a  charter  for  its  own 
government,  consistent  with  and  subject  to  the  Constitution  and 
laws  of  this  state,  by  causing  a  board  of  fifteen  freeholders,  who 
shall  have  been  for  at  least  five  years  qualified  electors  thereof, 
to  be  elected  by  the  qualified  voters  of  said  city  at  any  general  or 
special  election,  whose  duty  it  shall  be,  within  ninety  days  after 
such  election  to  prepare  and  propose  a  charter  for  such  city,  which 
shall  be  signed  in  duplicate  by  the  members  of  such  board,  or  a 
majority  of  them,  and  returned,  one  copy  to  the  mayor  thereof, 
or  other  chief  executive  officer  of  such  city,  and  the  other  to  the 
recorder  of  the  county.  Such  proposed  charter  shall  then  be  pub- 
lished in  two  daily  newspapers  of  general  circulation  in  such  city, 
for  at  least  twenty  days,  and  the  first  publication  shall  be  made 
within  twenty  days  after  the  completion  of  the  charter;  provided, 
that  in  cities  containing  a  population  of  not  more  than  ten  thou- 
sand inhabitants,  such  proposed  charter  shall  be  published  in  one 
such  daily  newspaper;  and  within  not  less  than  thirty  days  after 
such  publication  it  shall  be  submitted  to  the  qualified  electors  of 
said  city  at  a  general  or  special  election,  and  if  a  majority  of  such 
qualified  electors  voting  thereon  shall  ratify  the  same,  it  shall 
thereafter  be  submitted  to  the  legislature  for  its  approval  or  re- 
jection as  a  whole,  without  power  of  alteration  or  amendment. 
Such  approval  may  be  made  by  concurrent  resolution,  and  if  ap- 
proved by  a  majority  vote  of  the  members  elected  to  each  house, 
it  shall  become  the  charter  of  such  city,  or,  if  such  city  be  con- 
solidated with  a  county,  then  of  such  city  and  county,  and  shall 
become  the  organic  law  thereof,  and  supersede  any  existing  charter 
and  all  amendments  thereof,  and  all  laws  inconsistent  with  such 
charter.  A  copy  of  such  charter,  certified  by  the  mayor,  or  chief 
executive  officer,  and  authenticated  by  the  seal  of  such  city,  set- 
ting forth  the  submission  of  such  charter  to  the  electors,  and  its 
ratification  by  them,  shall  after  the  approval   of  such  charter   by 


Art.  XI,  §  8  CONSTITUTION  OF  1879.  412 

the  legislature,  be  made  in  duplicate,  and  deposited,  one  in  the 
office  of  the  secretarj^  of  state,  and  the  other,  after  being  recorded 
in  said  recorder's  office,  shall  be  deposited  in  the  archives  of  the 
city,  and  thereafter  all  courts  shall  take  judicial  notice  of  said 
charter.  The  charter,  so  ratified,  may  be  amended  at  intervals  of 
not  less  than  two  years  by  proposals  therefor,  submitted  by  the 
legislative  authority  of  the  city  to  the  qualified  electors  thereof  at 
a  general  or  special  election,  held  at  least  forty  days  after  the 
publication  of  such  proposals  for  twenty  days  in  a  daily  newspaper 
of  general  circulation  in  such  city,  and  ratified  by  a  majority  of 
the  electors  voting  thereon,  and  approved  by  the  legislature  as 
herein  provided  for  the  approval  of  the  charter.  Whenever  fifteen 
per  cent  of  the  qualified  voters  of  the  city  shall  petition  the  legis- 
lative authority  thereof  to  submit  any  proposed  amendment  or 
amendments  to  said  charter  to  the  qualified  voters  thereof  for  ap- 
proval, the  legislative  authority  thereof  must  submit  the  same.  In 
submitting  any  such  charter,  or  amendments  thereto,  any  alterna- 
tive article  or  proposition  may  be  presented  for  the  choice  of  the 
voters,  and  may  be  voted  on  separately  without  prejudice  to  others. 
(Amendment  adopted  November  4,  1902.) 

[AMENDMENT  OF  1892.] 
Sec.  8.  Any  city  containing  a  population  of  more  than  three 
thousand  five  hundred  inhabitants  may  frame  a  charter  for  its  own 
government,  consistent  with  and  subject  to  the  Constitution  and 
laws  of  this  state,  by  causing  a  board  of  fifteen  freeholders,  who 
shall  have  been  for  at  least  five  years  qualified  electors  thereof, 
to  be  elected  by  the  qualified  voters  of  said  city  at  any  general 
or  special  election,  whose  duty  it  shall  be,  within  ninety  days  after 
such  election,  to  prepare  and  propose  a  charter  for  such  city,  which 
shall  be  signed,  in  duplicate,  by  the  members  of  such  board,  or  a 
majority  of  them,  and  returned,  one  copy  to  the  mayor  thereof,  or 
other  chief  executive  officer  of  such  city,  and  the  other  to  the  re- 
corder of  the  county.  Such  proposed  charter  shall  then  be  pub- 
lished in  two  daily  newspapers  of  general  circulation  in  such  city, 
for  at  least  twenty  days,  and  the  first  publication  shall  be  made 
within  twenty  days  after  the  completion  of  the  charter;  provided, 
that  in  cities  containing  a  population  of  no  more  than  ten  thou- 
sand inhabitants  such  proposed  charter  shall  be  published  in  one 
such  daily  newspaper;  and  within  not  less  than  thirty  days  after 
such  publication  it  shall  be  submitted  to  the  qualified  electors  of 
said  city  at  a  general  or  special  election,  and  if  a  majority  of  such 
qualified  electors  voting  thereat  shall  ratify  the  same,  it  shall 
thereafter  be  submitted  to  the  legislature  for  its  approval  or  re- 
jection as  a  whole,  without  power  of  alteration  or  amendment. 
Such  approval  may  be  made  by  concurrent  resolution,  and  if  ap- 
proved by  a  majority  vote  of  the  members  elected  to  each  house, 
it  shall  become  the  charter  of  such  city,  or  if  such  city  be  consoli- 
dated with  a  county,  then  of  such  city  and  county,  and  shall  be- 
come the  organic  law  thereof,  and  supersede  any  existing  charter 
and  all  amendments  thereof,  and  all  laws  inconsistent  with  such 
charter.     A  copy  of  such  charter,  certified  by  the  mayor,  or  chief 


413  CITIES,    COUNTIES    AND    TOWNS.  Art.  XI,  §  8 

executive  oflicer,  and  authenticated  by  the  seal  of  such  city,  set- 
ting forth  the  submission  of  such  charter  to  the  electors,  and  its 
ratification  by  them,  shall,  after  the  approval  of  such  charter  by 
the  legislature,  be  made,  in  duplicate,  and  deposited,  one  in  the 
office  of  the  secretary  of  state,  and  the  other,  after  being  recorded 
in  said  recorder's  office,  shall  be  deposited  in  the  archives  of  the 
city,  and  thereafter  all  courts  shall  take  judicial  notice  of  said 
charter.  The  charter,  so  ratified,  may  be  amended  at  intervals  of 
not  less  than  two  years  by  proposals  therefor,  submitted  by  the 
legislative  authority  of  the  city  to  the  qualified  electors  thereof, 
at  a  general  or  special  election,  held  at  least  forty  days  after  the 
publication  of  such  proposals  for  twenty  days  in  a  daily  newspaper 
of  general  circulation  in  such  city,  and  ratified  by  at  least  three- 
fifths  of  the  qualified  electors  voting  thereat,  and  approved  by  the 
legislature,  as  herein  provided  for  the  approval  of  the  charter.  In 
submitting  any  such  charter,  or  amendments  thereto,  any  alter- 
native article  or  proposition  may  be  presented  for  the  choice  of 
the  voters,  and  may  be  voted  on  separately  without  prejudice  to 
others.     (Ratification  declared  December  30,  1892.) 

[AMENDMENT  OF  1887.] 
Sec.  8.  Any  city  or  consolidated  city  and  county,  containing  a 
population  of  more  than  one  hundred  thousand  inhabitants,  may 
frame  a  charter  for  its  own  government,  consistent  with  and  sub- 
ject to  the  Constitution  and  laws  of  this  state,  by  causing  a  board 
of  fifteen  freeholders,  who  shall  have  been  foi;  at  least  five  years 
qualified  electors  thereof,  to  be  elected  by  the  qualified  voters  of 
such  city,  or  city  and  county,  at  any  general  or  special  election, 
whose  duty  it  shall  be,  within  one  hundred  days  after  such  elec- 
tion, to  prepare  and  propose  a  charter  for  such  city,  or  city  and 
county,  which  shall  be  signed  in  duplicate  by  the  members  of  such 
board,  or  a  majority  of  them,  and  returned,  one  copy  thereof  to  the 
mayor,  or  other  chief  executive  officer  of  such  city  or  city  and 
county,  and  the  other  to  the  recorder  of  deeds  of  the  county,  or 
city  and  county.  Such  proposed  charter  shall  then  be  published 
in  two  daily  papers  of  general  circulation  in  such  city,  or  city  and 
county,  for  at  least  twenty  days,  and  such  publication  shall  be  com- 
menced within  twenty  (20)  days  after  the  completion  of  the  char- 
ter, and  within  not  less  than  thirty  days  after  the  completion  of 
such  publication,  it  shall  be  submitted  by  the  legislative  authority 
of  said  city,  or  city  and  county,  to  the  qualified  electors  thereof  at 
a  general  or  special  election,  and  if  a  majority  of  such  qualified 
electors  voting  thereat  shall  ratify  the  same,  it  shall  thereafter  be 
submitted  to  the  legislature  for  its  approval  or  rejection  as  a 
whole,  without  power  of  alteration  or  amendment;  and  if  approved 
by  a  majority  vote  of  the  members  elected  to  each  house,  it  shall 
become  the  charter  of  such  city,  or  if  such  city  be  consolidated 
with  a  county,  then  of  such  city  and  county,  and  shall  become  the 
organic  law  thereof,  and  supersede  any  existing  charter  and  all 
amendments  thereof,  and  all  special  laws  inconsistent  with  such 
charter.  A  copy  of  such  charter,  certified  by  the  mayor  or  other 
chief  executive  officer,  and  authenticated  by  the  seal  of  such  city, 


Art.  XI,  §  8  CONSTITUTION  OF  1879.  414 

or  city  and  county,  setting  forth  the  submission  of  such  charter  to 
the  electors,  and  its  ratification  by  them,  shall  be  made  in  dupli- 
cate, and  deposited,  one  in  the  office  of  the  secretary  of  state,  the 
other,  after  being  recorded  in  the  office  of  the  recorder  of  deeds  of 
the  county,  or  city  and  county,  among  the  archives  of  the  city,  or 
city  and  county.  All  courts  shall  take  judicial  notice  thereof. 
The  charter  so  ratified  may  be  amended  at  intervals  of  not  less 
than  two  years,  by  proposals  therefor  submitted  by  legislative 
authority  of  this  city,  or  city  and  county,  to  the  qualified  voters 
thereof  at  a  general  or  special  election  held  at  least  sixty  days 
after  the  publication  of  such  proposals,  and  ratified  by  at  least 
three-fifths  of  the  qualified  electors  voting  thereat,  and  approved 
by  the  legislature  as  herein  provided,  for  the  approval  of  the  char- 
ter. In  submitting  any  such  charter,  or  amendment  thereto,  any 
alternative  article  or  proposition  may  be  presented  for  the  choice 
of  the  voters,  and  may  be  voted  on  separately  without  prejudice 
to  others.  Any  city,  or  consolidated  city  or  county,  containing  a 
population  of  more  than  ten  thousand  and  not  more  than  one  hun- 
dred thousand  inhabitants,  may  frame  a  charter  for  its  own  gov- 
ernment, consistent  with  and  subject  to  the  Constitution  and  laws 
of  the  state,  by  causing  a  board  of  fifteen  freeholders,  who  shall 
have  been  for  at  least  five  years  qualified  electors  thereof,  to  be 
elected  by  the  qualified  voters  of  said  city,  or  city  and  couuty,  at 
any  general  or  special  election,  whose  duty  it  shall  be,  within 
ninety  days  after  such  election,  to  prepare  and  propose  a  charter 
for  such  city,  or  city  and  county,  which  shall  be  signed  in  dupli- 
cate by  the  members  of  such  board,  or  a  majority  of  them,  and  re- 
turned, one  copy  thereof  to  the  mayor,  or  other  chief  executive 
officer  of  said  city  or  city  and  county,  and  the  other  to  the  re- 
corder of  the  county,  or  city  and  county.  Such  proposed  charter 
shall  then  be  published  in  two  daily  papers  of  general  circulation 
in  such  city,  or  city  and  county,  for  at  least  twenty  days,  and 
publication  shall  be  commenced  within  twenty  days  after  the  com- 
pletion of  the  charter;  and  within  not  less  than  thirty  days  after 
the  completion  of  such  publication  it  shall  be  submitted  by  the 
legislative  authority  of  said  city,  or  city  and  county,  to  the  quali- 
fied electors  of  said  city,  or  city  and  county,  at  a  general  or  special 
election,  and  if  a  majority  of  such  qualified  electors  voting  thereat 
shall  ratify  the  same,  it  shall  thereafter  be  submitted  to  the  legis- 
lature for  its  approval  or  rejection  as  a  whole,  without  power  of 
alteration  or  amendment,  and  if  approved  by  a  majority  vote  of 
the  members  elected  to  each  house,  it  shall  become  the  charter  of 
such  city,  or  if  such  city  be  consolidated  with  a  county,  then  of 
such  city  and  county,  and  shall  become  the  organic  law  thereof, 
and  shall  supersede  any  existing  charter  and  all  amendments  there- 
of, and  all  special  laws  inconsistent  with  such  charter.  A  copy  of 
such  charter,  certified  by  the  mayor,  or  other  chief  executive  offi- 
cer, and  authenticated  by  the  seal  of  such  city,  or  city  and  county, 
setting  forth  the  submission  of  such  charter  to  the  electors,  and  its 
ratification  by  them,  shall  be  made  in  duplicate,  and  deposited, 
one  in  the  office  of  the  secretary  of  state,  and  the  other,  after 
being  recorded  in  the  office  of  the  recorder  of  deeds  of  the  county, 


415  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  8 

or  city  and  county,  among  the  archives  of  the  city,  or  city  ami 
county;  and  thereafter  all  courts  shall  take  judicial  notice  thereof. 
The  charter  so  ratified  may  be  amended,  at  intervals  of  not  less 
than  two  years,  by  proposals  therefor,  submitted  by  the  legis- 
lative authority  of  the  city,  or  city  and  county,  to  the  qualified 
electors  thereof,  at  a  general  or  special  election  held  at  least  sixty 
days  after  the  publication  of  such  proposals,  and  ratified  by  at 
least  three-fifths  of  the  qualified  electors  voting  thereat,  and  ap- 
proved by  the  legislature  as  herein  provided  for  the  approval  of 
the  charter.  In  submitting  any  such  charter,  or  amendment  there- 
to, any  alternative  article  or  proposition  may  be  presented  for  the 
choice  of  the  voters,  and  may  be  voted  on  separately  without 
prejudice  to  others. 

[OEIGINAL  SECTION.] 

Sec.  8.  Any  city  containing  a  population  of  more  than  one  hun- 
dred thousand  inhabitants  may  frame  a  charter  for  its  own  govern- 
ment, consistent  wath  and  subject  to  the  Constitution  and  laws  of 
this  state,  by  causing  a  board  of  fifteen  freeholders,  who  shall  have 
been  for  at  least  five  years  qualified  electors  thereof,  to  be  elected 
by  the  qualified  voters  of  such  city,  at  any  general  or  special  elec- 
tion, whose  duty  it  shall  be,  within  ninety  days  after  such  elec- 
tion, to  prepare  and  propose  a  charter  for  such  city,  which  shall 
be  signed  in  duplicate  by  the  members  of  such  board,  or  a  majority 
of  them,  and  returned  one  copy  thereof  to  the  mayor,  or  other 
chief  executive  officer  of  such  city,  and  the  other  to  the  recorder 
of  deeds  of  the  county.  Such  proposed  charter  shall  then  be  pub- 
lished in  two  daily  papers  of  general  circulation  in  such  city  for 
at  least  twenty  days,  and  within  not  less  than  thirty  days  after 
such  publication  it  shall  be  submitted  to  the  qualified  electors  of 
such  city  at  a  general  or  special  election,  and  if  a  majority  of 
such  qualified  electors  voting  thereat  shall  ratify  the  same,  it  shall 
thereafter  be  submitted  to  the  legislature  for  its  approval  or  re- 
jection as  a  whole,  without  power  of  alteration  or  amendment,  and 
if  approved  by  a  majority  vote  of  the  members  elected  to  each 
house,  it  shall  become  the  charter  of  such  city,  or  if  such  city  be 
consolidated  with  a  county,  then  of  such  city  and  county,  and  shall 
become  the  organic  law  thereof,  and  supersede  any  existing  charter 
and  all  amendments  thereof,  and  all  special  laws  inconsistent  with 
such  charter.  A  copy  of  such  charter,  certified  by  the  mayor,  or 
chief  executive  officer  and  authenticated  by  the  seal  of  such  city, 
setting  forth  the  submission  of  such  charter  to  the  electors,  and  its 
ratification  by  them,  shall  be  made  in  duplicate,  and  deposited,  one 
in  the  office  of  the  secretary  of  state,  the  other,  after  being  re- 
corded in  the  office  of  the  recorder  of  deeds  of  the  county,  or  city 
and  county,  among  the  archives  of  the  city,  all  courts  shall  take 
judicial  notice  thereof.  The  charter  so  ratified  may  be  amended  at 
intervals  of  not  less  than  two  years,  by  proposals  therefor  sub- 
mitted by  legislative  authority  of  the  city,  to  the  qualified  voters 
thereof  at  a  general  or  special  election  held  at  least  sixty  days 
after  the  publication  of  such  proposals,  and  ratified  by  at  least 
three-fifths  of  the  qualified  electors  voting  thereat,  and  approved 


Art.  XI,  §  8  CONSTITUTION  OF  1879.  41G 

by  the  legislature  as  herein  provided  for  the  approval  of  the  char- 
ter. In  submitting  any  such  charter,  or  amendment  thereto,  any 
alternative  article  or  proposition  may  be  presented  for  the  choice 
of  voters,  and  may  be  voted  on  separately  without  prejudice  to 
others. 

CHARTERS — In  general. — This  section  is  self-executing.  (People 
V.  Hoge,  55  Cal.  612.) 

Self-executing   provisions   of    Constitution.     See    note,   Ann.    Cas. 
1914C,  1116. 

The  provisions  of  this  section  as  to  the  adoption  of  the  charter  are 
mandatory  and  prohibitory,  and  a  failure  to  observe  them  will  invali- 
date the  charter.     (People  v.  Gunn,  85  Cal.  2.38,  24  Pac.  718.) 

The  purpose  of  this  section  was  to  emancipate  municipal  govern- 
ments from  the  authority  and  control  formerly  exercised  over  them 
by  the  legislature.     (People  v.  Hoge,  55  Cal.  612.) 

The  right  to  frame  a  charter  is  not  a  continuing  right,  and  after  it 
has  been  once  exercised  by  the  adoption  of  a  charter,  the  municipality 
cannot  adopt  another  charter,  but  must  amend  the  one  already 
adopted.     (Blanchard  v.  Hartwell,  131  Cal.  263,  63  Pac.  349.) 

The  legislature  cannot  abridge  the  right  given  by  this  section  to 
cities  to  adopt  charters.     (People  v.  Bagley,  85  Cal.  343,  24  Pac.  716.) 

A  charter  is  a  "statute"  within  the  meaning  of  section  1622  of  the 
Civil  Code.  It  is  also  a  "law/  and  also  written  law.  (Frick  v.  Los 
Angeles,   115  Cal.  512,  47  Pac.  250.) 

The  authority  to  adopt  a  charter  is  a  part  of  the  law-making  power 
of  the  state.     (Sheehan  v.  Scott,  145  Cal.  684,  79  Pac.  350.) 

A  charter  must  be  consistent  with  the  Constitution  and  general  laws 
of  the  state.  But  the  whole  charter  will  not  be  held  invalid  because 
a  few  of  its  provisions  may  be  inconsistent  with  general  statutes  in 
force  at  the  time  of  its  adoption.  (Brooks  v.  Fischer,  79  Cal.  173, 
4  L.  E.  A.  429,  21  Pac.  652.) 

A  charter  unlawfully  attempting  to  give  a  police  court  exclusive 
jurisdiction  of  certain  misdemeanors  is  not  inconsistent  with  the  gen- 
eral law  giving  such  jurisdiction  to  justices'  courts.  (Ex  parte  Dolan, 
128  Cal.  460,  60  Pac.  1094.) 

A  city  may  provide  in  its  charter  for  taxation  for  municipal  pur- 
poses.    (Security  Sav.  Bank  etc.  Co.  v.  Hinton,  97  Cal.  214,  32  Pac.  3.) 

The  charter  cannot  extend  its  authority  outside  of  the  territory  of 
the  city.     (Kennedy  v.  Miller,  97  Cal.  429,  437,  32  Pac.  558.) 

A  reference  in  a  special  charter  of  a  city  to  a  particular  title  of 
the  Political  Code  for  its  powers  and  provisions  has  the  effect  to  make 
the  appropriate  title  a  part  of  the  charter  of  the  city.  (Ex  parte 
Lemon,  143  Cal.  558,  65  L.  R.  A.  946,  77  Pac.  455.) 

The  provisions  of  the  Political  Code  as  to  the  formation  of  the  legis- 
lative body  of  municipalities  is  not  such  a  general  law  that  a  charter 
must  be  consistent  with  it.  (In  re  Pfahler,  150  Cal.  71,  11  L.  R.  A. 
(N.  S.)   1092,  11  Ann.  Cas.  911,  88  Pac.  270.) 

There  is  no  limitation  in  the  Constitution  .on  the  right  to  include 
in  a  freeholders'  charter  power  to  acquire,  own  and  operate  public 
utilities.  (Piatt  v.  City  and  County  of  San  Francisco,  158  Cal.  74, 
110  Pac.  304.) 


417  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  8 

Freeholders. — The  board  of  election  commissioners  of  San  Francisco 
have  power  to  call  an  election  of  freeholders  under  this  section. 
(People  V.  Hoge,  55  Cal.  612.) 

The  action  of  the  board  of  election  commissioners  in  ordering  an 
election  of  freeholders  under  this  section  is  not  judicial  in  its  nature. 
(People  V.  Board  of  Election  Commrs.,  54  Cal.  404.) 

All  that  is  necessary  to  the  validity  of  an  election  of  freeholders  is 
that  they  may  be  chosen  at  a  general  or  special  election;  and  where 
there  has  been  such  an  election,  the  voice  of  the  people  is  not  to  be 
rejected  for  a  defect  or  even  want  of  notice,  if  they  have  in  truth 
been  called  upon  and  have  spoken.     (People  v.  Hoge,  55  Cal.  612.) 

As  to  whether  or  not  irregularities  in  the  election  of  freeholders 
can  affect  the  validity  of  the  charter,  see  People  v.  Gunn,  85  Cal.  238, 
24  Pac.  718. 

Where  the  person  receiving  the  highest  number  of  votes  for  free- 
holder is  disqualified,  the  next  highest  person  is  not  entitled  to  a  cer- 
tificate of  election.  (People  v.  Hecht,  105  Cal.  621,  45  Am.  St.  Rep. 
96,  27  L.  E.  A.  203,  38  Pac.  941.) 

The  acts  of  de  facto  freeholders  are  valid.  (People  v.  Hecht,  105 
Cal.  621,  45  Am.  St.  Rep.  96,  27  L.  R.  A.  203,  38  Pac.  941.) 

Where  some  of  the  freeholders  elected  are  ineligible,  the  remainder 
of  them  may  frame  the  charter,  A  majority  of  those  qualified  may 
act.  (People  v.  Hecht,  105  Cal.  621,  45  Am.  St.  Rep.  96,  27  L.  R.  A. 
203,  38  Pac.  941.) 

A  person  who  has  not  been  for  at  least  five  years  a  qualified  elector 
of  the  city  is  ineligible  to  the  office  of  freeholder.  (People  v.  Hecht, 
105  Cal.  621,  45  Am.  St.  Rep.  96,  27  L.  R.  A.  203,  38  Pac.  941.) 

The  clause  authorizing  the  presentation  at  a  charter  or  charter 
amendment  election  of  an  "alternative  article  or  proposition"  is  sim- 
ply permissive,  and  there  is  no  duty  to  present  an  alternative  article 
or  proposition  for  submission.'  (Apple  v.  Zemansky,  166  Cal.  83,  134 
Pac.  1149.) 

Charter  provisions  have  the  force  and  effect  of  legislative  enact- 
ments within  their  constitutional  limitations,  the  same  being  the 
organic  law  or  local  Constitution  of  the  city.  (Dalton  v.  Lelande,  22 
Cal.  App.  481,  135  Pac.  54.) 

Unless  prohibited  by  some  provision  of  the  Constitution,  expressed 
or  implied,  a  municipal  charter  adopted  as  provided  in  this  section 
may  contain  any  provision  not  in  conflict  with  or  covered  by  general 
laws  of  the  state.  (Stern  v.  City  Council  of  Berkeley,  25  Cal.  App. 
685,  689,  145  Pac.  167.) 

Ratification. — The  duty  of  calling  an  election  to  ratify  a  charter  is 
one  clearl}'  enjoined  by  law,  and  may  be  enforced  by  mandamus;  and 
it  is  no  defense  that  there  may  not  be  sufficient  funds  in  the  treasury 
to  defray  the  expenses  of  the  election.  (Gibbs  v.  Bartlett,  63  Cal. 
117.) 

A  municipal  charter  must  receive  a  majority'  of  all  the  votes  cast  at 
the  election,  and  not  merely  a  majority  of  the  votes  cast  thereupon. 
(Santa  Rosa  v.  Bower,  142  Cal.  299,  75  Pac.  829.) 

An  election  is  invalid  if  no  duplicate  of  the  proposed  charter  was 
delivered  to  the  mayor  or  recorder,  or  if  held  without  sufficient  pub- 
Constitution — 27 


Art.  XI,  §  8  CONSTITUTION  OF  1879,  418 

lication  of  notice,  or  in  less  than  the  required  number  of  days  after 
completion  of  the  publication.  (People  v.  Gunn,  85  Cal.  238,  24  Pac. 
718.) 

A  city  charter  may  be  approved  by  a  majority  of  the  members 
elected  to  each  house  of  the  legislature  by  joint  resolution,  without 
the  approval  of  the  governor.  (Brooks  v.  Fischer,  79  Cal.  173,  4  L. 
E.  A.  429,  21  Pac.  652.) 

The  legislature  in  approving  a  freeholders'  charter  does  not  exercise 
its  law-making  power.  (People  v.  Toal,  85  Cal.  333,  24  Pac.  603; 
People  V.  Gunn,  85  Cal.  238,  24  Pac.  718.) 

The  legislature  in  approving  a  freeholders'  charter  cannot  conclu- 
sively determine  whether  or  not  the  municipal  authorities  and  people 
of  the  city  have  proceeded  regularly  in  its  framing  and  adoption. 
(People  v.  Gunn,  85  Cal.  238,  24  Pac.  718.) 

If,  by  the  approval,  under  this  section,  of  a  charter  or  an  amend- 
ment which  vests  in  a  local  body  authority  to  legislate  concerning 
local  matters,  the  legislature  may  be  said  to  be  delegating  legislative 
power,  such  delegation  is  one  that  is  expressly  authorized  by  the  Con- 
stitution.    (Mardis  v.  McCarthy,  162  Cal.  94,  121  Pac.  389.) 

Effect. — A  new  charter  supersedes  the  old  and  all  amendments 
thereto.     (People  v.  Oakland,  92  Cal.  611,  28  Pac.  807.) 

A  description  of  the  territory  of  a  municipal  corporation  is  an  es- 
sential part  of  the  charter,  and  is  superseded  by  an  entirely  new 
charter  containing  a  different  description  of  territory  from  that  con- 
tained in  the  original  charter.  (People  v.  Oakland,  92  Cal.  611,  28 
Pac.  807.) 

The  adoption  of  a  new  charter  operates,  not  ex  proprio  vigore,  but 
by  virtue  of  the  provisions  of  the  Constitution,  to  supersede  the  exist- 
ing charter  and  all  amendments  thereto,  and  although  such  charter 
cannot  establish  a  police  court,  it  will  abolish  one  established  by  the 
former  charter.     (Ex  parte  Sparks,  120  Cal.  395,  52  Pac.  715.) 

A  new  charter  supersedes  the  provision  of  an  existing  charter  estab- 
lishing a  justice's  court.  (Miner  v.  Justice's  Court,  121  Cal.  264,  53 
Pac.  795.) 

While  the  charter  of  the  city  of  Eureka  superseded  the  provisions 
of  the  former  charter  creating  the  office  of  harbormaster,  without 
making  any  provision  for  such  officer,  it  did  not  supersede  the  provi- 
sions of  the  Political  Code  providing  for  the  duties  of  such  harbor- 
master.    (Quigg  V.  Evans,  121  Cal.  546,  53  Pac.  1093.) 

The  charter  is  the  organic  law  of  this  city  and  supersedes  all  laws 
inconsistent  therewith.  (Dinan  v.  Superior  Court,  6  Cal.  App.  217,  91 
Pac.  806.) 

The  charter  of  San  Francisco,  when  approved  by  the  legislature,  be- 
came the  organic  law  of  the  city  and  county,  and  superseded  the 
existing  charter  and  all  laws  inconsistent  therewith,  and  thereafter 
the  city  and  county  was  no  longer  subject  to  or  controlled  by  general 
laws.     (Burke  v.  Board  of  Trustees,  4  Cal.  App.  235,  87  Pac.  421.) 

Validity. — The  municipality,  real  or  pretended,  is  a  necessary  party 
to  a  proceeding  to  test  the  validity  of  a  municipal  charter.  (People 
v.  Gunn,  85  Cal.  238,  24  Pac.  718.) 

Amendments. — After  the  adoption  of  a  freeholders'  charter  a  second 
board  of  freeholders  cannot  be  elected  to  frame  a  second  charter  for 


I 


419  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  8 

the  city  to  be  adopted  by  a  majority  vote,  but  the  first  charter  must 
be  amended.     (Blanehard  v.  Hartwell,  131  Cal.  263,  63  Pac.  349.) 

The  provisions  of  the  Constitution  in  regard  to  the  adoption  and 
amendment  of  freeholders'  charters  are  mandatory  and  prohibitory; 
and  the  mode  of  amendment  of  such  charters  is  exclusively  com- 
manded, and  all  others  are  prohibited.  (Blanehard  v.  Hartwell,  131 
Cal.  263,  63  Pac.  349.) 

The  amendment  mentioned  in  this  section  relates  only  to  amend- 
ments made  by  and  at  the  instance  of  the  officers  and  electors  of  the 
city,  and  does  not  inhibit  the  amendment  or  change  of  the  charter 
•within  two  years  under  general  laws.  (People  v.  Coronado,  100  Cal. 
571,  35  Pac.  162.) 

The  annexation  of  additional  territory  to  the  city  does  not  work 
an  amendment  to  the  charter.  (People  v.  Oakland,  123  Cal.  598,  56 
Pac.  445.) 

The  mayor  of  the  city  and  county  of  San  Francisco  is  not  included 
in  the  term  "legislative  authority  of  the  city,"  and  a  proposed  amend- 
ment need  not  be  approved  by  him.  (Harrison  v.  Eoberts,  145  Cal. 
173,  78  Pac.  537.) 

The  use  of  the  words  legislative  authority  was  not  intended  to  de- 
fine the  powers  of  that  body  or  place  it  in  a  position  where  it  would 
be  beyond  restriction  by  the  organic  law  of  the  city.  (In  re  Pfahler, 
150  Cal.  71,  11  L.  R.  A.  (N.  S.)   1092,  11  Ann.  Cas.'  911,  88  Pac.  270.) 

The  interval  of  two  years  refers  to  the  time  which  must  elapse  be- 
tween the  elections  at  which  the  amendments  are  ratified  and  not  to 
the  action  of  the  legislative  authoritj'  of  the  city  or  the  approval  by 
the  legislature.     (Harrison  v.  Roberts,  145  Cal.  173,  78  Pac.  537.) 

Where  amendments  are  petitioned  for  by  fifteen  per  cent  of  the 
voters,  the  legislative  authority  of  city  has  discretion  either  to  call  a 
special  election  or  to'  wait  until  the  next  general  election  to  submit 
them  to  the  people.     (Lubliner  v.  Alpers,  145  Cal.  291,  78  Pac.  722.) 

A  provision  in  a  freeholder's  charter  fixing  the  salaries  of  officers 
and  providing  that  "the  common  council  in  the  month  of  January, 
1891,  and  every  four  years  thereafter  shall  readjust  and  fix  anew  the 
amount  of  all  official  salaries  provided  for  in  this  charter,"  is  not  an 
amendment  to  the  charter.  (Coyne  v.  Eennie,  97  Cal.  590,  32  Pac. 
578.) 

In  Harrison  v.  Eoberts,  145  Cal.  173,  78  Pac.  537,  it  was  held  that 
the  limitation  of  two  years  referred  to  the  time  of  the  adoption  of 
the  amendment  by  the  electors,  and  not  to  the  time  of  the  proposal 
thereof  or  the  ratification  thereof  by  the  legislature.  In  doing  so  the 
court  said:  "The  only  effect  of  the  limitation  as  to  time  is  to  prohibit 
a  submission  for  ratification  by  the  electors  of  any  proposed  amend- 
ment within  two  years  from  the  submission  for  ratification  of  any 
prior  amendment;  in  other  words,  that  proposals  for  amendments  may 
be  submitted  at  elections,  only  at  intervals  of  two  years."  In  Mig- 
liavacca  v.  Napa,  10  Cal.  App.  383,  102  Pac.  227,  it  was  held  that  this 
language  could  not  be  construed  to  mean  that  if  the  amendments  were 
rejected  at  the  first  election  other  amendments  could  not  be  submitted 
within  two  years. 

Amendments  may  be  submitted  in  less  than  two  years  after  the  re- 
jection of  other  amendments.  (Migliavacca  v.  Napa,  10  Cal.  App. 
383,  102  Pac.  227.) 


Art.  XI,  §  8l^  CONSTITUTION  OF  1879.  420 

The  "special  election"  provided  for  by  this  section  is  an  election 
held  for  the  special  purpose  of  voting  upon  the  amendments  to  the 
charter.     (People  v.  Davie,  114  Cal.  363,  46  Pac.  150.) 

One  resolution  approving  thirteen  separate  amendments  to  a  city 
charter  is  sufficient.  (In  re  Pfahler,  150  Cal,  71,  11  L.  R.  A.  (N.  S.) 
1092,  11  Ann.  Cas.  911,  88  Pac.  270.) 

The  effect  of  this  provision  is  necessarily  to  make  any  proposed 
amendment  which  is  regularly  submitted  in  accordance  with  its  pro- 
visions to  the  people,  ratified  by  a  majority  of  the  electors  voting 
thereon,  and  approved  in  the  manner  required  by  a  majority  of  the 
members  of  each  house  of  the  legislature,  a  part  of  the  charter,  from 
the  date  of  legislative  approval.  (Apple  v.  Zemansky,  166  Cal.  83, 
134  Pac.  1149.) 

Amendments   to   charters   are  binding  without   acceptance.     (See 
note,  53  Am.  Dec.  470. 

When  charter  takes  effect, — When  a  newly  adopted  charter  ex- 
pressly provided  for  a  preliminary  election  under  it  on  a  date  prior 
to  the  date  at  which  the  charter  is  to  take  effect,  the  charter  is  to  be 
construed  as  consistent  with  itself,  and  the  general  provision  as  to  its 
taking  effect  merely  means  that  the  machinery  of  the  new  government 
shall  not  start  until  the  later  date  and  does  not  conflict  with  the  pro- 
vision for  a  preliminary  election.  (Trafton  v.  Quinn,  143  Cal.  469,  77 
Pac.  164.) 

Validity  of  statute  conferring  on  municipality  power  to  adopt  or 

amend  new  charter.     See  note,  Ann.  Cas.  1913C,  788. 
Eight  of  municipality  to  adopt  commission  form  of  government. 
See  notes,  Ann.  Cas.  1912C,  999;   35  L,  R.  A.   (N.  S.)   802;  41 
L.  R.  A.  (N.  S.)   Ill, 

City  or  city  and  county  charters,  to  contain  what. 

Section  S^/^,  It  shall  be  competent,  in  all  charters  framed 
under  the  authority  given  by  section  eight  of  this  article  to 
provide,  in  addition  to  those  provisions  allowable  by  this 
Constitution  and  by  the  laws  of  the  state,  as  follows : 

1.  For  the  constitution,  regulation,  government,  and  ju- 
risdiction of  police  courts,  and  for  the  manner  in  which,  the 
times  at  which,  and  the  terms  for  which  the  judges  of  such 
courts  shall  be  elected  or  appointed,  and  for  the  qualifica- 
tions and  compensation  of  said  judges  and  of  their  clerks 
and  attaches ;  and  for  the  establishment,  constitution,  regu- 
lation, government  and  jurisdiction  of  municipal  courts, 
with  such  civil  and  criminal  jurisdiction  as  by  law  may  be 
conferred  upon  inferior  courts ;  and  for  the  manner  in 
which,  the  times  at  which,  and  the  terms  for  which  the 
judges  of  such  courts  shall  be  elected  or  appointed,  and  for 


421  CITIES,  COUNTIES  AND  TOWNS.         Art.  XI,  §  81/2 

the  qualifications  and  compensation  of  said  judges  and  of 
their  clerks  and  attaches;  provided  such  municipal  courts 
shall  never  be  deprived  of  the  jurisdiction  given  inferior 
courts  created  by  general  law. 

In  any  city  or  any  city  and  county,  when  such  municipal 
court  has  been  established,  there  shall  be  no  other  court  in- 
ferior to  the  superior  court ;  and  pending  actions,  trials,  and 
all  pending  business  of  inferior  courts  within  the  territory  of 
such  city  or  city  and  county,  upon  the  establishment  of  any 
such  municipal  court,  shall  be  and  become  pending  in  such 
municipal  court,  and  all  records  of  such  inferior  courts  shall 
thereupon  be  and  become  the  records  of  such  municipal 
court. 

2.  For  the  manner  in  which,  the  times  at  Avhich,  and  the 
terms  for  which  the  members  of  boards  of  education  shall 
be  elected  or  appointed,  for  their  qualifications,  compensa- 
tion and  removal,  and  for  the  number  which  shall  constitute 
any  one  of  such  boards. 

3.  For  the  manner  in  which,  the  times  at  which,  and  the 
terms  for  which  the  members  of  the  boards  of  police  commis- 
sioners shall  be  elected  or  appointed;  and  for  the  constitu- 
tion, regulation,  compensation,  and  government  of  such 
boards  and  of  the  municipal  police  force. 

4.  For  the  manner  in  which  and  the  times  at  which  any 
municipal  election  shall  be  held  and  the  result  thereof  deter- 
mined ;  for  the  manner  in  which,  the  times  at  which,  and  the, 
terms  for  which  the  members  of  all  boards  of  election  shall 
be  elected  or  appointed,  and  for  the  constitution,  regulation, 
compensation  and  government  of  such  boards,  and  of  their 
clerks  and  attaches,  and  for  all  expenses  incident  to  the 
holding  of  any  election. 

It  shall  be  competent  in  any  charter  framed  in  accordance 
with  the  provisions  of  this  section,  or  section  eight  of  this 
article,  for  any  city  or  consolidated  city  and  county,  and 
plenary  authority  is  hereby  granted,  subject  only  to  the  re- 
strictions of  this  article,  to  provide  therein  or  by  amend- 
ment thereto,  the  manner  in  which,  the  method  by  which, 
the  times  at  which,  and  the  terms  for  wliich  the  several 
county  and  municipal  officers  and  employees  whose  compen- 


Art.  XI,  §  81/^  CONSTITUTION  OF  1879.  422 

sation  is  paid  by  such  city  or  city  and  county,  excepting 
judges  of  the  superior  court,  shall  be  elected  or  appointed, 
and  for  their  recall  and  removal,  and  for  their  compensa- 
tion, and  for  the  number  of  deputies,  clerks  and  other  em- 
ployees that  each  shall  have,  and  for  the  compensation, 
method  of  appointment,  qualifications,  tenure  of  office  and 
removal  of  such  deputies,  clerks  and  other  employees.  All 
provisions  of  any  charter  of  any  such  city  or  consolidated 
city  and  county,  heretofore  adopted,  and  amendments  there- 
to, which  are  in  accordance  herewith,  are  hereby  confirmed 
and  declared  valid. 

5.  It  shall  be  competent  in  any  charter  or  amendment 
thereof,  which  shall  hereafter  be  framed  under  the  author- 
ity given  by  section  eight  of  this  article,  by  any  city  having 
a  population  in  excess  of  fifty  thousand  ascertained  as  pre- 
scribed by  said  section  eight,  to  provide  for  the  separation 
of  said  city  from  the  county  of  which  it  has  theretofore  been 
a  part  and  the  formation  of  said  city  into  a  consolidated 
city  and  county  to  be  governed  by  such  charter,  and  to  have 
combined  powers  of  a  city  and  county,  as  provided  in  this 
Constitution  for  consolidated  city  and  county  government, 
and  further  to  prescribe  in  said  charter  the  date  for  the  be- 
ginning of  the  official  existence  of  said  consolidated  city  and 
county. 

It  shall  also  be  competent  for  any  such  city,  not  having 
already  consolidated  as  a  city  and  county  to  hereafter 
frame,  in  the  manner  prescribed  in  section  eight  of  this 
article,  a  charter  providing  for  a  city  and  county  govern- 
ment, in  which  charter  there  shall  be  prescribed  territorial 
boundaries  which  may  include  contiguous  territory  not  in- 
cluded in  such  city,  which  territory,  however,  must  be  in- 
cluded in  the  county  within  which  such  city  is  located. 

If  no  additional  territory  is  proposed  to  be  added,  then, 
upon  the  consent  to  the  separation  of  any  such  city  from 
the  county  in  which  it  is  located,  being  given  by  a  majority 
of  the  qualified  electors  voting  thereon  in  such  county  and 
upon  the  ratification  of  such  charter  by  a  majority  of  the 
qualified  electors  voting  thereon  in  such  city,  and  the  ap- 
proval thereof  by  the  legislature,  as  prescribed  in  section 


423  CITIES,   COUNTIES  AND  TOWNS.         Art.  XI,  §  S^J 

eight  of  this  article,  said  charter  shall  be  deemed  adopted 
and  upon  the  date  fixed  therein  said  city  shall  be  and  be- 
come a  consolidated  city  and  county. 

If  additional  territory  which  consists  wholly  of  only  one 
incorporated  city  or  town,  or  Avhich  consists  wholly  of  unin- 
corporated territory,  is  proposed  to  be  added,  then,  upon  the 
consent  to  such  separation  of  such  territory  and  of  the  city 
initiating  the  consolidation  proposal  being  given  by  a  ma- 
jority of  the  qualified  electors  voting  thereon  in  the  county 
in  which  the  city  proposing  such  separation  is  located,  and 
upon  the  ratification  of  such  charter  by  a  majority  of  the 
qualified  electors  voting  thereon  in  such  city  so  proposing 
the  separation,  and  also  upon  the  approval  of  the  proposal 
hereinafter  set  forth,  by  a  majority  of  the  qualified  electors 
voting  thereon  in  the  whole  of  such  additional  territory,  and 
the  approval  of  said  charter  by  the  legislature,  as  prescribed 
in  section  eight  of  this  article,  said  charter  shall  be  deemed 
adopted,  the  indebtedness  hereinafter  referred  to  shall  be 
deemed  to  have  been  assumed,  and  upon  the  date  fixed  in 
said  charter  such  territory  and  such  city  shall  be  and  be- 
come one  consolidated  city  and  county. 

The  proposal  to  be  submitted  to  the  territory  proposed 
to  be  added  shall  be  substantially  in  the  following  form  and 
submitted  as  one  indivisible  question : 

"Shall  the  territory  (herein  designate  in  general  terms 
the  territory  to  be  added)  consolidate  with  the  city  of 
(herein  insert  name  of  the  city  initiating  the  proposition  to 
form  a  city  and  county  government)  in  a  consolidated  city 
and  county  government,  and  shall  the  charter  as  prepared 
by  the  city  of  (herein  insert  the  name  of  the  city  initiating 
such  proposition)  be  adopted  as  the  charter  of  the  consoli- 
dated city  and  county,  and  shall  the  said  added  territory 
become  subject  to  taxation  along  with  the  entire  territory 
of  the  proposed  city  and  county,  in  accordance  with  the 
assessable  valuation  of  the  property  of  the  said  territory, 
for  the  following  indebtedness  of  said  city  (herein  insert 
name  of  the  city  initiating  such  proposition)  to  wit:  (herein 
insert  in  general  terms  reference  to  any  debts  to  be  as- 
sumed, and  if  none  insert  'none')." 


Art.  XI,  §  8Y2  CONSTITUTION  OF  1879.  424 

If  additional  territory  is  proposed  to  be  added,  which 
includes  unincorporated  territory  and  one  or  more  incorpo- 
rated cities  or  towns,  or  which  includes  more  than  one  in- 
corporated city  or  town,  the  consent  of  any  such  incorpo- 
rated city  or  town  shall  be  obtained  by  a  majority  vote  of 
the  qualified  electors  thereof  voting  upon  a  proposal  sub- 
stantially as  follows : 

"Shall  (herein  insert  the  name  of  the  city  or  towui  to  be 
included  in  such  additional  territory)  be  included  in  a  dis- 
trict to  be  hereafter  defined  by  the  city  of  (herein  insert  the 
name  of  the  city  initiating  the  proposition  to  form  a  city 
and  county  government)  which  district  shall,  within  two 
years  from  the  date  of  this  election,  vote  upon  a  proposal 
submitted  as  one  indivisible  question  that  such  district  to 
be  then  described  and  set  forth  shall  consolidate  with  (here- 
in insert  name  of  the  city  initiating  said  consolidation 
proposition)  in  a  consolidated  city  and  county  government, 
and  also  that  a  certain  charter,  to  be  prepared  by  the  city 
of  (herein  insert  name  of  the  city  initiating  such  proposi- 
tion) be  adopted  as  the  charter  of  such  consolidated  city 
and  county,  and  that  such  district  become  subject  to  taxa- 
tion along  with  the  entire  territory  of  the  proposed  city  and 
county  in  accordance  with  the  assessable  valuation  of  the 
property  of  said  district  for  the  follawing  indebtedness  of 
said  city  of  (herein  insert  name  of  the  city  initiating  such 
proposition)  to  w^it :  (herein  insert  in  general  terms,  refer- 
ence to  any  debts  to  be  assumed  and  if  none  insert  'none')." 

Any  and  all  incorporated  cities  or  towns  to  which  the 
foregoing  proposal  shall  have  been  submitted  and  a  ma- 
jority of  whose  qualified  electors  voting  thereon  shall  have 
voted  in  favor  thereof,  together  with  such  unincorporated 
territory  as  the  city  initiating  such  consolidation  proposal 
may  desire  to  have  included,  the  whole  to  form  an  area  con- 
tiguous to  said  city,  shall  be  created  into  a  district  by  such 
city,  and  the  proposal  substantially  as  above  prescribed  to 
be  used  when  the  territory  proposed  to  be  added  consists 
wholly  of  only  one  incorporated  city  or  town,  or  wholly 
of  unincorporated  territory,  shall,  within  two  years,  be  sub- 


I 


425  CITIES,  COUNTIES  AND  TOWNS.         Art.  XI,  §  SYo 

mitted  to  the  voters  of  said  entire  district  as  one  indivisible 
question. 

Upon  consent  to  the  separation  of  such  district  and  of  the 
city  initiating  the  consolidation  proposal  being  given  by  a 
majority  of  the  qualified  electors  voting  thereon  in  the 
county  in  which  the  city  proposing  such  separation  is  lo- 
cated, and  upon  the  ratification  of  such  charter  by  a  major- 
ity of  the  qualified  electors  voting  thereon  in  such  city,  and 
upon  the  approval  of  the  proposal  hereinbefore  set  forth  by 
a  majority  of  the  qualified  electors  voting  thereon  in  the 
whole  of  the  said  district  so  proposed  to  be  added,  and  upon 
the  approval  of  said  charter  by  the  legislature,  as  pre- 
scribed in  section  eight  of  this  article,  said  charter  shall  be 
deemed  adopted,  the  said  indebtedness  referred  to  in  said 
proposal  shall  be  deemed  to  have  been  assumed,  and  upon 
the  date  fixed  in  said  charter,  such  district  and  such  city 
shall  be  and  become  one  consolidated  city  and  county. 

6.  It  shall  be  competent  for  any  consolidated  city  and 
county  now  existing,  or  which  shall  hereafter  be  organized, 
to  annex  territory  contiguous  to  such  consolidated  city 
and  county,  unincorporated  or  otherwise,  whether  situated 
wholly  in  one  county,  or  parts  thereof  be  situate  in  differ- 
ent counties,  said  annexed  territory  to  be  an  integral  part 
of  such  city  and  county,  provided  that  such  annexation  of 
territory  shall  only  include  any  part  of  the  territory  which 
was  at  the  time  of  the  original  consolidation  of  the  annexing 
city  and  county,  within  the  county  from  which  such  annex- 
ing city  and  county  was  formed,  together  with  territory 
which  was  concurrently,  or  has  since  such  consolidation 
been  joined  in  a  county  government  Avith  the  area  of  the 
original  county  not  included  in  such  consolidated  city  and 
county. 

If  additional  territory,  which  consists  wholly  of  only  one 
incorporated  city,  city  and  county  or  town,  or  wliich  con- 
sists Avholly  of  unincorporated  territory,  is  proposed  to  be 
annexed  to  any  consolidated  city  and  county  now  existing 
or  which  shall  hereafter  be  organized,  then,  upon  the  con- 
sent to  any  such  annexation  being  given  by  a  majority  of 
the  qualified  electors  voting  thereon  in  any  county  or  coun- 


Art.  XI,  §  81/2  CONSTITUTION  OF  1879.  426 

ties  in  which  any  such  additional  territory  is  located,  and 
upon  the  approval  of  such  annexation  proposal  by  a  ma- 
jority of  the  qualified  electors  voting  thereon  in  such  city 
and  county,  and  also  upon  the  approval  of  the  proposal 
hereinafter  set  forth  by  a  majority  of  the  qualified  electors 
voting  thereon  in  the  whole  of  such  territory  proposed  to  be 
annexed,  the  indebtedness  hereinafter  referred  to  shall  be 
deemed  to  have  been  assumed,  and  at  the  time  stated  in  such 
proposal,  such  additional  territory  and  such  city  and  county 
shall  be  and  become  one  consolidated  city  and  county,  to  be 
governed  by  the  charter  of  the  city  and  county  proposing 
such  annexation,  and  any  subsequent  amendment  thereto. 

The  proposal  to  be  submitted  to  the  territory  proposed  to 
be  annexed,  shall  be  substantially  in  the  following  form  and 
submitted  as  one  indivisible  question : 

"Shall  the  territory  (herein  designate  in  general  terms 
the  territory  to  be  annexed)  consolidate  with  the  city  and 
county  of  (herein  insert  the  name  of  the  city  and  county 
initiating  the  annexation  proposal)  in  a  consolidated  city 
and  county  government,  said  consolidation  to  take  effect 
(herein  insert  date  when  such  consolidation  shall  take  ef- 
fect) and  shall  the  said  annexed  territory  become  subject  to 
taxation,  as  an  integral  part  of  the  city  and  county  so 
formed,  in  accordance  with  the  assessable  valuation  of  prop- 
erty of  said  territory  for  the  following  indebtedness  of  said 
city  and  county  of  (herein  insert  name  of  the  city  and 
county)  to  wit:  (herein  insert  in  general  terms,  reference 
to  any  debts  to  be  assumed  and  if  none  insert  'none')." 

If  additional  territory  including  unincorporated  territory 
and  one  or  more  incorporated  cities,  cities  and  counties,  or 
towns,  or  including  more  than  one  incorporated  city,  city 
anl  county,  or  town,  is  proposed  to  be  annexed  to  any  con- 
solidated city  and  county  now  existing  or  which  shall  here- 
after be  organized,  the  consent  of  each  such  incorporated 
city,  city  and  county,  or  town,  shall  be  obtained  by  a  ma- 
jority vote  of  the  qualified  electors  of  any  such  incorpo- 
rated city,  city  and  county,  or  town,  voting  upon  a  proposal 
substantially  as  follows : 


I 


427  CITIES,  COUNTIES  AND  TOWNS.         Art.  XI,  §  81^ 

"Shall  (herein  insert  name  of  the  city,  city  and  county, 
or  town,  to  be  included  in  such  annexed  territory)  be  in- 
cluded in  a  district  to  be  hereafter  defined  by  the  city  and 
county  of  (herein  insert  the  name  of  the  city  and  county 
initiating  the  annexation  proposal)  which  district  shall 
within  two  years  from  the  date  of  this  election  vote  upon  a 
proposal  submitted  as  one  indivisible  question,  that  such 
district  to  be  then  described  and  set  forth  shall  consolidate 
with  (herein  insert  name  of  the  city  and  county  initiating 
the  annexation  proposal)  in  a  consolidated  city  and  county 
government,  and  that  such  district  become  subject  to  taxa- 
tion, along  with  the  entire  territory  of  the  proposed  city 
and  county  in  accordance  with  the  assessable  valuation  of 
the  property  of  said  district  for  the  following  indebtedness 
of  said  city  and  county  of  (herein  insert  name  of  the  city 
and  county  initiating  the  annexation  proposal)  to  wit: 
(herein  insert  in  general  terms,  reference  to  any  debts  to  be 
assumed  and  if  none  insert  'none')." 

Any  and  all  incorporated  cities,  cities  and  counties,  or 
towns,  to  which  the  foregoing  proposal  shall  have  been  sub- 
mitted, and  a  majority  of  whose  qualified  electors  voting 
thereon  shall  have  voted  in  favor  thereof,  together  with 
such  unincorporated  territory  as  the  city  and  county  initiat- 
ing such  annexation  proposal  may  desire  to  have  included, 
the  whole  to  form  an  area  contiguous  to  said  city  and 
county,  shall  be  created  into  a  district  by  said  city  and 
county,  and  the  proposal  substantially  in  the  form  above 
set  forth  to  be  used  Avhen  the  territory  proposed  to  be  added 
consists  wholly  of  only  one  incorporated  city,  city  and 
county,  or  town,  or  wholly  of  unincorporated  territory, 
shall,  within  said  two  years,  be  submitted  to  the  voters  of 
said  entire  district  as  one  indivisible  question. 

Upon  consent  to  any  such  annexation  being  given  by  a 
majority  of  the  qualified  electors,  voting  thereon  in  any 
county  or  counties  in  which  any  such  territory  proposed  to 
be  annexed  to  said  city  and  county  is  located,  and  upon  the 
approval  of  any  such  annexation  proposal  by  a  majority  of 
the  qualified  electors  voting  thereon  in  such  city  and  county 
proposing  such  annexation,  and  also  upon  the  approval  of 


Art.  XI,  §  8y2  CONSTITUTION  OF  1879.  428 

the  proposal  hereinbefore  set  forth  by  a  majority  of  the 
qualified  electors  voting  thereon  in  the  whole  of  the  district 
so  proposed  to  be  annexed,  then,  the  said  indebtedness  re- 
ferred to  in  said  proposal  shall  be  deemed  to  have  been 
assumed,  and  upon  the  date  stated  in  such  annexation  pro- 
posal such  district  and  such  city  and  county  shall  be  and 
become  one  consolidated  city  and  county,  to  be  governed  by 
the  charter  of  the  city  and  county  proposing  such  annexa- 
tion, and  any  subsequent  amendment  thereto. 

Whenever  any  proposal  is  submitted  to  the  electors  of  any 
county,  territory,  district,  city,  city  and  county,  or  town,  as 
above  provided,  there  shall  be  published,  for  at  least  five 
successive  publications  in  a  newspaper  of  general  circula- 
tion printed  and  published  in  any  such  county,  territory, 
district,  city,  city  and  county,  or  town,  the  last  publication 
to  be  not  less  than  twenty  days  prior  to  any  such  election, 
a  particular  description  of  any  territory  or  district  to  be 
separated,  added,  or  annexed,  together  with  a  particular 
description  of  any  debts  to  be  assumed,  as  above  referred 
to,  unless  such  particular  description  is  contained  in  the 
said  proposal  so  submitted.  In  addition  to  said  description, 
such  territory  shall  also  be  designated  in  such  notice  by 
some  appropriate  name  or  other  words  of  identification,  by 
which  such  territory  may  be  referred  to  and  indicated  upon 
the  ballots  to  be  used  at  any  election  at  which  the  question 
of  annexation  or  consolidation  of  additional  territory  is  sub- 
mitted as  herein  provided.  If  there  be  no  such  newspaper 
so  printed  and  published  in  any  such  county,  territory,  dis- 
trict, city,  city  and  county,  or  town,  then  such  publication 
may  be  made  in  any  newspaper  of  general  circulation 
printed  and  published  in  the  nearest  county,  city,  city  and 
county,  or  town  where  there  may  be  such  a  newspaper  so 
printed  and  published. 

If,  by  the  adoption  of  any  charter,  or  by  annexation,  any 
incorporated  municipality  becomes  a  portion  of  a  city  and 
county,  its  property,  debts  and  liabilities  of  every  descrip- 
tion shall  be  and  become  the  property,  debts  and  liabilities 
of  such  city  and  county. 


429  CITIES,  COUNTIES  AND  TOWNS.        Art.  XI,  §  S^/. 

Every  city  and  county  which  shall  be  formed,  or  the  ter- 
ritory of  which  shall  be  enlarged  as  herein  provided  from 
territory  taken  from  any  county  or  counties,  shall  be  liable 
for  a  just  proportion  of  the  debts  and  liabilities  and  be  en- 
titled to  a  just  proportion  of  the  property  and  assets  of  such 
county  or  counties,  existing  at  the  time  such  territory  is  so 
taken. 

The  provisions  of  this  Constitution  applicable  to  cities,  and 
cities  and  counties,  and  also  those  applicable  to  counties,  so 
far  as  not  inconsistent  or  prohibited  to  cities,  or  cities  and 
counties,  shall  be  applicable  to  such  consolidated  city  and 
county  government;  and  no  provision  of  subdivision  5  or  6 
of  this  section  shall  be  construed  as  a  restriction  upon  the 
plenary  authority  of  any  city  or  city  and  county  having  a 
freeholders'  charter,  as  provided  for  in  this  Constitution,  to 
determine  in  said  charter  any  and  all  matters  elsewhere  in 
this  Constitution  authorized  and  not  inconsistent  herewith. 

The  legislature  shall  provide  for  the  formation  of  one  or 
more  counties  from  the  portion  or  portions  of  a  county  or 
counties  remaining  after  the  formation  of  or  annexation  to 
a  consolidated  city  and  county,  or  for  the  transfer  of  such 
portion  or  portions  of  such  original  county  or  counties  to 
adjoining  counties.  But  such  transfer  to  an  adjoining 
county  shall  only  be  made  after  approval  by  a  majority 
vote  of  the  qualified  electors  voting  thereon  in  such  terri- 
tory proposed  to  be  so  transferred. 

The  provisions  of  section  two  of  this  article,  and  also 
those  provisions  of  section  three  of  this  article  which  refer 
to  the  passing  of  any  county  line  within  five  miles  of  the 
exterior  boundary  of  a  city  or  town  in  which  a  county  seat 
of  any  county  proposed  to  be  divided  is  situated,  shall  not 
apply  to  the  formation  of,  nor  to  the  extension  of  the  terri- 
tory of  such  consolidated  cities  and  counties,  nor  to  the 
formation  of  new  counties,  nor  to  the  annexation  of  existing 
counties,  as  herein  specified. 

Any  city  and  county  formed  under  this  section  shall  have 
the  right,  if  it  so  desires,  to  be  designated  by  the  official 
name  of  the  city  initiating  the  consolidation  as  it  existed 
immediately  prior  to  its  adoption  of  a  chart(M'  providing  for 


Art.  XI,  §  8I/2  CONSTITUTION  OF  1879.  430 

a  consolidated  city  and  county  government,  except  that 
such  city  and  county  shall  be  known  under  the  style  of  a 
city  and  county. 

It  shall  be  competent  in  any  charter  framed  for  a  consoli- 
dated city  and  county,  or  by  amendment  thereof,  to  provide 
for  the  establishment  of  a  borough  system  of  government 
for  the  whole  or  any  part  of  the  territory  of  said  city  and 
county,  by  which  one  or  more  districts  may  be  created 
therein,  which  districts  shall  be  known  as  boroughs  and 
which  shall  exercise  such  municipal  powers  as  may  be 
granted  thereto  by  such  charter,  and  for  the  organization, 
regulation,  government  and  jurisdiction  of  such  boroughs. 

No  property  in  any  territory  hereafter  consolidated  with 
or  annexed  to  any  city  or  city  and  county  shall  be  taxed 
for  the  payment  of  any  indebtedness  of  such  city  or  city 
and  county  outstanding  at  the  date  of  such  consolidation 
or  annexation  and  for  the  payment  of  which  the  property 
in  such  territory  was  not,  prior  to  such  consolidation  or 
annexation,  subject  to  such  taxation,  unless  there  shall  have 
been  submitted  to  the  qualified  electors  of  such  territory  the 
proposition  regarding  the  assumption  of  indebtedness  as 
hereinbefore  set  forth  and  the  same  shall  have  been  approved 
by  a  majority  of  such  electors  voting  thereon. 

7.  In  all  cases  of  annexation  of  unincorporated  territory 
to  an  incoi'iDorated  city,  or  the  consolidation  of  two  or  more 
incorporated  cities,  assumption  of  existing  bonded  indebted- 
ness by  such  unincorporated  territory  or  by  either  of  the 
cities  so  consolidating  may  be  made  by  a  majority  vote  of 
the  qualified  electors  voting  thereon  in  the  territory  or  city 
which  shall  assume  an  existing  bonded  indebtedness.  This 
provision  shall  apply  whether  annexation  or  consolidation 
is  effected  under  this  section  or  any  other  section  of  this 
Constitution,  and  the  provisions  of  section  eighteen  of  this 
article  shall  not  be  a  prohibition  thereof. 

The  legislature  shall  enact  such  general  laAvs  as  may  be 
necessary  to  carry  out  the  provisions  of  this  section  and 
such  general  or  special  laws  as  may  be  necessary  to  carry 
out  the  provisions  of  subdivisions  5  and  6  of  this  section, 
including  any  such  general  or  special  act  as  may  be  neces- 


431  CITIES,  COUNTIES  AND  TOWNS.        Art.  XI,  §  8I/2 

sary  to  permit  a  consolidated  city  and  county  to  submit  a 
new  charter  to  take  effect  at  the  time  that  any  consolida- 
tion, by  reason  of  annexation  to  such  consolidated  city  and 
county,  takes  effect,  and  also,  any  such  general  law  or  spe- 
cial act  as  may  be  necessary  to  provide  for  any  period  after 
such  consolidation,  by  reason  of  such  annexation,  takes 
effect,  and  prior  to  the  adoption  and  approval  of  any  such 
new  charter.     (Amendment  adopted  November  3,  1914.) 

[AMENDMENT    OF    1911.] 

See.  8%.  It  shall  be  competent,  in  all  charters  framed  under 
the  authority  given  by  section  eight  of  article  eleven  of  this  Con- 
stitution, to  provide,  in  addition  to  those  provisions  allowable  by 
this  Constitution  and  by  the  laws  of  the  state,  as  follows: 

1.  For  the  Constitution,  regulation,  government,  and  jurisdiction 
of  police  courts,  and  for  the  manner  in  which,  the  times  at  which, 
and  the  terms  for  which  the  judges  of  such  courts  shall  be  elected 
or  appointed,  and  for  the  qualifications  and  compensation  of  said 
judges  and  of  their  clerks  and  attaches. 

2.  For  the  manner  in  which,  the  times  at  which,  and  the  terms 
for  which  the  members  of  boards  of  education  shall  be  elected  or 
appointed,  for  their  qualifications,  compensation  and  removal,  and 
for  the  number  which  shall  constitute  any  one  of  such  boards. 

3.  For  the  manner  in  which,  the  times  at  which,  and  the  terms 
for  which  the  members  of  the  boards  of  police  commissioners  shall 
be  elected  or  appointed;  and  for  the  constitution,  regulation,  com- 
pensation, and  government  of  such  boards  and  of  the  municipal 
police  force. 

4.  For  the  manner  in  which  and  the  times  at  which  any  mu- 
nicipal election  shall  be  held  and  the  result  thereof  determined;  for 
the  manner  in  which,  the  times  at  which,  and  the  terms  for  which 
the  members  of  all  boards  of  election  shall  be  elected  or  appointed, 
and  for  the  constitution,  regulation,  compensation  and  government 
of  such  boards,  and  of  their  clerks  and  attaches;  and  for  all  ex- 
penses incident  to  the  holding  of  any  election. 

"Where  a  city  and  county  government  has  been  merged  and  con- 
solidated into  one  municipal  government,  it  shall  also  be  compe- 
tent, in  any  charter  framed  under  said  section  eight  of  said  article 
eleven,  or  by  amendment  thereto,  to  provide  for  the  manner  in 
which,  the  times  at  which  and  the  terms  for  which  the  several 
county  and  municipal  officers  and  employees  whose  compensation 
is  paid  by  such  city  and  county,  excepting  judges  of  the  superior 
court,  shall  be  elected  or  appointed,  and  for  their  recall  and  re- 
moval, and  for  their  compensation,  and  for  the  number  of  deputies, 
clerks  and  other  employees  that  each  shall  have,  and  for  the  com- 
pensation, method  ot  appointment,  qualifications,  tenure  of  office 
and  removal  of  such  deputies,  clerks  and  other  employees.  All 
provisions  of  any  charter  of  any  such  consolidated  city  and  county 
heretofore  adopted,  and  amendments  thereto,  which  are  in  accord- 


Art.  XI,  §  81/2  CONSTITUTION  OP  1879.  432 

ance  herewith,  are  hereby  confirmed  and  declared  valid.     (Amend- 
ment approved  October  10,  1911.) 

[AMENDMENT  OF  1896.] 
Sec.   8^4.     It   shall  be   competent,  in  all   charters  framed  under 
the  authority  given  by  section  eight  of  article  eleven  of  this  Con- 
stitution, to  provide,  in  addition  to  those  provisions  allowable  by 
this  Constitution  and  by  the  laws  of  the  state,  as  follows: 

1.  For  the  constitution,  regulation,  government,  and  jurisdiction 
of  police  courts,  and  for  the  manner  in  which,  the  times  at  which, 
and  the  terms  for  which  the  judges  of  such  courts  shall  be  elected 
or  appointed,  and  for  the  compensation  of  said  judges  and  of  their 
clerks  and  attaches. 

2.  For  the  manner  in  which,  the  times  at  which,  and  the  terms 
for  which  the  members  of  boards  of  education  shall  be  elected  or 
appointed,  and  the  number  which  shall  constitute  any  one  of  such 
boards. 

3.  For  the  manner  in  which,  the  times  at  which,  and  the  terms 
for  which  the  members  of  the  boards  of  police  commissioners  shall 
be  elected  or  appointed;  and  for  the  constitution,  regulation,  com- 
pensation, and  government  of  such  boards  and  of  the  municipal 
police  force. 

4.  For  the  manner  in  which,  the  times  at  which,  and  the  terms 
for  which  the  members  of  all  boards  of  election  shall  be  elected 
or  appointed,  and  for  the  constitution,  regulation,  compensation, 
and  government  of  such  boards,  and  of  their  clerks  and  attaches; 
and  for  all  expenses  incident  to  the  holding  of  any  election. 

Where  a  city  and  county  government  has  been  merged  and  con- 
solidated into  one  municipal  government,  it  shall  also  be  competent 
in  any  charter  framed  under  said  section  eight  of  said  article 
eleven,  to  provide  for  the  manner  in  which,  the  times  at  which, 
and  the  terms  for  which  the  several  county  officers  shall  be  elected 
or  appointed,  for  their  compensation,  and  for  the  number  of  depu- 
ties that  each  shall  have,  and  for  the  compensation  payable  to  each 
of  such  deputies.     (Amendment  adopted  November  3,  1896.) 

PROVISIONS  OF  CHARTER.— This  section  is  not  retroactive,  and 
has  no  application  to  charters  previously  adopted.  (Ex  parte  Sparks, 
120  Cal.  395,  52  Pac.  715.) 

This  section  does  not  revive  or  validate  a  provision  in  the  charter 
of  a  municipality,  adopted  and  ratified  before  the  Constitution  was 
amended,  providing  for  the  establishment  of  a  police  court.  (Fleming 
V.  Hance,  153  Cal.  162,  94  Pac.  620.) 

As  to  such  matters  as  this  section  authorizes  to  be  provided  for  in 
freeholders'  charters,  the  provisions  of  the  charter  are  supreme.  (Gra- 
ham V.  Fresno,  151  Cal.  465,  91  Pac.  147.) 

Where  the  charter  of  a  consolidated  city  and  county  government  is 
silent  as  to  the  election  or  appointment  of  special  officers  or  their 
compensation,  the  general  law  prevails.  (Nicholl  v.  Koster,  157  Cal. 
416,  108  Pac.  302.) 

Under  this  provision  the  freeholders'  charter  of  San  Francisco  prop- 
erly fixed  the  manner  in  which,  the  times  at  which,  and  the  terms  for 


433  CITIES,  COUNTIES  AND  TOWNS.        Art.  XI,  §  8*/^ 

which  the  several  county  officers  shall  be  elected  or  appointed.  (Mar- 
tia  V.  Board  of  Election  Commrs.,  126  Cal.  404,  58  Pac.  932.) 

Under  this  section  the  charter  cannot  vest  exclusive  jurisdiction  of 
certain  misdemeanors  in  the  police  court,  and  thus  oust  the  justices' 
courts  of  such  jurisdiction.  (Ex  parte  Dolan,  128  Cal.  460,  60  Pac. 
1094.) 

Under  this  provision  it  is  competent  for  the  charter  of  a  city  and 
county  to  provide  that  the  salary  of  the  assessor  shall  be  in  full  com- 
pensation for  his  services,  although  the  general  law  allowed  him  extra 
compensation  for  collecting  poll  taxes.  (Dodge  v.  San  Francisco,  133 
Cal.  512,  67  Pac.  973.) 

As  to  the  meaning  of  the  word  "deputies"  as  used  in  this  section, 
see  Garnett  v.  Brooks,  136  Cal.  585,  69  Pac.  298. 

This  section  confers  no  power  upon  the  municipality  to  prescribe 
by  a  freeholders'  charter  the  qualifications  of  the  deputies  mentioned 
in  this  section.     (Crowley  v.  Freud,  132  Cal.  440,  64  Pac.  696.) 

A  provision  of  a  freeholders'  charter  that  officers  of  the  city  and 
county  must  have  been  electors  of  the  city  and  county  for  at  least  five 
years  before  their  election  is  valid.  (Sheehan  v.  Scott,  145  Cal.  684, 
79  Pac.  350.) 

Stenographers  of  the  police  court  are  "attaches"  of  the  court  within 
the  meaning  of  this  section.  (Elder  v.  McDougald,  145  Cal.  740,  79 
Pac.  429.) 

This  section  does  not  authorize  the  charter  to  confer  on  the  police 
court  concurrent  jurisdiction  with  the  superior  courts  of  misdemean- 
ors.    (Eobert  v.  Police  Court,  148  Cal.  131,  82  Pac.  838.) 

The  power  given  by  the  charter  to  the  police  judges  to  appoint 
stenographers  and  fixing  their  compensation  supersedes  the  provisions 
of  the  Penal  Code  on  the  subject.  (Elder  v.  McDougald,  145  Cal.  740, 
79  Pac.  429.) 

The  power  conferred  by  this  section  includes  the  power  to  provide 
for  the  attaches  not  only  of  the  police  court,  but  also  of  the  police 
judge  when  acting  as  a  committing  magistrate,  and  whether  acting 
under  the  charter  or  under  the  general  law.  (Elder  v.  McDougald, 
145  Cal.  740,  79  Pac.  429.) 

The  mere  fact  that  this  section  only  refers  to  "police  courts"  does 
not  prevent  the  city  from  conferring  the  same  jurisdiction  upon  a  "re- 
corder."    (In  re  Baxter,  3  Cal.  App.  716,  86  Pac.  998.) 

This  provision  has  no  application  to  justices'  courts.  (In  re  John- 
son, 6  Cal.  App.  734,  93  Pac.  199.) 

Since  the  adoption  of  this  section  the  legislature  has  no  power  to 
establish  a  police  court  in  a  city  maintaining  a  police  court  under  its 
charter.     (Graham  v.  Fresno,  151  Cal.  465,  91  Pac.  147.) 

The  term  "police  court"  probably  includes  such  inferior  courts  as 
may  properly  be  held  to  be  purely  municipal,  though  given  by  the 
state  certain  jurisdiction  in  state  as  distinguished  from  municipal 
matters.     (Graham  v.  Fresno,  151  Cal.  465,  91  Pac.  147.) 

The  term  "police  court"   ordinarily  refers  to  an  inferior  municipal 

court    with    a   limited    jurisdiction    in    criminal    cases    only,    with    the 

power  to  try  certain  misdemeanor  cases  arising  from  the  violation  of 

state  law  or  municipal  ordinance,  and  to  conduct  creliminary  exami- 

Constitution — 28 


Art.  XI,  §  8a  constitution  of  1879.  434 

nation  in  cases  of  felony  and  certain  misdemeanors,  and  does  not  in- 
clude justices'  courts.     (Graham  v.  Fresno,  151  Cal.  46.5,  91  Pac.  147.) 

This  section  has  no  application  to  justices  of  the  peace  and  did  not 
restrict  the  power  of  the  legislature  to  provide  for  justices'  courts  in 
cities  and  towns.     (Graham  v.  Fresno,  151  Cal.  465,  91  Pac.  147.) 

This  section  means  that  as  to  criminal  offenses  such  as  violations  of 
municipal  ordinances  the  framers  of  a  charter  have  the  exclusive  right 
to  provide  for,  but  it  is  not  to  be  construed  as  authorizing  such  char- 
ters to  confer  upon  their  police  courts  jurisdiction  over  offenses  of 
every  character.  (Matter  of  Application  of  Westenberg,  167  Cal.  309, 
139  Pac.  674.) 

A  section  of  a  city  charter  providing  for  the  compensation  of  school 
directors  is  not  invalid  under  this  section,  as  it  existed  prior  to  the 
amendment  of  October,  1911,  which  expressly  authorized  charters  to 
provide  for  the  compensation  of  members  of  boards  of  education. 
(Stern  v.  City  Council  of  Berkeley,  25  Cal.  App.  685,  145  Pac.  167.) 

Panama-Pacific  International  Exposition. 

Sec.  8a.  The  charter  of  the  city  and  county  of  San  Fran- 
cisco may  be  amended,  in  addition  to  the  method  and  the 
times  provided  in  section  8  of  article  XI  of  the  Constitution, 
in  the  folloAving  particulars: 

(a)  Authorizing  the  city  and  county  of  San  Francisco, 
a  municipal  corporation,  by  its  legislative  authority,  to  in- 
cur a  bonded  indebtedness  in  an  amount  not  exceeding  five 
million  dollars,  and  to  issue  municipal  bonds  therefor,  and 
to  grant  and  turn  over  to  the  Panama-Pacific  International 
Exposition  Company  (a  corporation  organized  under  the 
laws  of  the  state  of  California  March  22,  1910)  the  proceeds 
of  said  bonds,  the  same  to  be  used  and  disbursed  by  said 
exposition  company  for  the  purposes  of  an  exposition  to  be 
held  in  the  city  and  county  of  San  Francisco  to  celebrate 
the  completion  of  the  Panama  Canal ;  said  bonds,  so  issued, 
to  be  of  such  form  and  to  be  redeemable,  registered  and 
converted  in  such  manner  and  amounts,  and  at  such  times 
not  later  than  forty  years  from  the  date  of  their  issue,  as 
such  legislative  authority  shall  determine ;  the  interest  on 
said  bonds  to  not  exceed  five  per  centum  per  annum,  and 
said  bonds  to  be  exempt  from  all  taxes  for  state  and  munici- 
pal purposes,  and  to  be  sold  for  not  less  than  par  at  such 
times  and  places,  and  in  such  manner,  as  shall  be  deter- 
mined by  said  legislative  authority ;  the  proceeds  of  said 
bonds,  when  sold,  to  be  payable  immediately  by  the  treasurer 


435  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  8a 

of  said  city  and  county  to  the  treasurer  of  said  Panama- 
Pacific  International  Exposition  Company,  upon  the  demand 
of  said  treasurer  of  said  exposition  company,  without  the  ne- 
cessity of  the  approval  of  such  demand  by  other  authority, 
the  same  to  be  used  and  disbursed  by  said  Panama-Pacific 
International  Exposition  Company  for  the  purposes  of  such 
exposition,  under  the  direction  and  control  of  such  expo- 
sition company; 

(b)  Providing  that  any  bonded  indebtedness  incurred  for 
the  purposes  aforesaid  shall  be  exclusive  of  the  bonded  in- 
debtedness of  the  said  city  and  county  limited  by  section  9 
of  article  XII  of  said  charter. 

(c)  Granting  to  said  Panama-Pacific  International  Expo- 
sition Company  the  exclusive  possession  and  use,  together 
with  the  management  and  control,  of  that  portion  of  Golden 
Gate  Park  in  the  city  and  county  of  San  Francisco  westerly 
from  Twentieth  avenue,  as  extended,  for  such  exposition 
purposes,  such  possession  and  use,  also  management  and 
control,  to  terminate  not  later  than  one  year  after  the  clos- 
ing of  such  exposition ; 

(d)  Granting  to  said  Panama-Pacific  International  Expo- 
sition Company  the  exclusive  possession  and  use,  together 
with  the  management  and  control,  for  such  exposition  pur- 
poses, of  any  lands  held  by  the  board  of  education  of  the 
city  and  county  of  San  Francisco,  and  by  the  city  and 
county  of  San  Francisco,  not  in  actual  use,  such  possession 
and  use,  also  management  and  control,  to  terminate  not 
later  than  one  year  after  the  closing  of  such  exposition, 

(e)  Authorizing  said  Panama-Pacific  International  Expo- 
sition Company  to  temporarily  close  streets  in  the  city  and 
county  of  San  Francisco  westerly  from  Twentieth  avenue, 
for  such  exposition  purposes,  and  to  have  the  exclusive  pos- 
session and  use,  together  with  the  management  and  control, 
of  said  streets  for  such  exposition  purposes,  such  possession 
and  use,  also  management  and  control  of  said  streets,  to 
terminate  not  later  than  one  year  after  the  closing  of  such 
exposition. 

Proposals  to  amend  the  charter  of  the  city  and  county  of 
San  Francisco   in  the  foregoing   particulars   may  be   sub- 


Art.  XI,  §  9  CONSTITUTION  OF  1879.  436 

mitted  by  the  legislative  authority  of  said  city  and  county 
to  the  electors  of  said  city  and  county,  at  any  general  or 
special  election  (and  a  special  election  may  be  called  there- 
for) held  in  said  city  and  county,  after  the  publication  of 
such  proposals  in  a  newspaper  of  general  circulation  in 
said  city  and  county,  for  such  time  as  shall  be  determined 
by  such  legislative  authority.  Upon  the  ratification  of  any 
such  proposed  amendment  by  a  majority  of  the  electors  of 
said  city  and  county  voting  at  such  election  on  such  pro- 
posed amendment,  said  proposed  amendment  receiving  such 
majority  vote  shall  become  operative  immediately  as  an 
amendment  to  said  charter,  without  the  necessity  of  ap- 
proval thereof  by  the  legislature. 

Any  act  of  the  legislative  authority  of  the  city  and  county 
of  San  Francisco,  in  submitting  to  the  electors  of  said  city 
and  county,  at  any  general  or  special  election,  proposals  to 
amend  the  charter  of  said  city  and  county  in  the  foregoing 
particulars,  including  any  notice  by  publication  or  other- 
wise of  such  proposals,  and  of  such  election,  and  the  holding 
of  such  election,  in  accordance  with  the  provisions  hereof, 
before  the  adoption  of  this  amendment,  are  hereby  validated 
in  all  respects  as  if  performed  subsequent  to  the  adoptlori 
of  this  amendment.  The  disbursement  of  all  funds  obtained 
from  said  bonds  shall  be  accounted  for  by  said  Panama- 
Pacific  International  Exposition  Company  by  an  itemized 
statement  thereof  to  be  filed  with  the  auditor  of  the  city 
and  county  of  San  Francisco.  (New  section  added  by 
amendment  adopted  November  8,  1910.) 

Compensation  of  officers. 

Sec.  9.  The  compensation  of  any  county,  city,  town,  or 
municipal  officer  shall  not  be  increased  after  his  election  or 
during  his  term  of  office ;  nor  shall  the  term  of  any  such  offi- 
cer be  extended  beyond  the  period  for  which  he  is  elected 
or  appointed. 

COMPENSATION  OF  OFFICERS. — The  provision  against  altering 
the  compensation  of  an  officer  during  his  term  applies  to  those  officers 
elected  at  the  first  election  after  the  adoption  of  the  Constitution, 
whose  salaries  were  fixed  by  previous  laws.  (Gross  v.  Kenfield,  57 
Ual.  626.) 


437  CITIES,  COUNTIES  AND  TOWNS, 

This  section  does  not  apply  to  incidental  expenses  of  the  office,  but 
only  to  the  compensation  for  services.  (Kirkwood  v.  Soto,  87  Cal. 
394,  25  Pae.  488.) 

Where  a  County  Government  Act  increases  the  salaries  of  certain 
officers  and  provides  that  it  "shall  not  affect  the  present  incumbents," 
such  increase  does  not  accrue  to  a  person  appointed  to  fill  a  vacancy 
in  an  unexpired  term  of  such  incumbent.  (Larew  v.  Newman,  81  Cal. 
588,  23  Pae.  227.) 

An  order  of  the  board  of  supervisors  allowing  a  county  clerk  a 
deputy  at  a  salary  of  fifty  dollars  a  month,  to  be  paid  by  the  county, 
made  after  the  election  of  the  county  clerk,  is  in  conflict  with  this 
provision.  (Dougherty  v.  Austin,  94  Cal.  601,  16  L.  R.  A.  161,  28  Pae. 
834,  29  Pae.  1092.) 

An  ordinance  of  a  board  of  supervisors  diminishing  the  compensa- 
tion of  constables  during  their  term  is  not  in  conflict  with  this  provi- 
sion.    (People  v.  Johnson,  95  Cal.  471,  31  Pae.  611.) 

Under  the  provisions  of  the  County  Government  Act  providing  that 
the  salaries  provided  for  therein  shall  be  in  full  compensation  for  all 
services  rendered  by  the  officers,  the  clerk  of  the  board  of  supervisors 
is  not  entitled  to  receive  any  extra  compensation  for  extra  work  done 
by  him  in  preparing  data  for  a  claim  of  the  county  against  the  state, 
whether  rendered  in  the  line  of  his  official  duty  or  otherwise.  (Hum- 
boldt County  v.  Stern,  136  Cal.  63,  68  Pae.  324.) 

This  section  only  applies  to  a  "county,  city,  town,  or  municipal  offi- 
cer," for  whose  term  of  office  the  Constitution  makes  no  provision,  and 
does  not  apply  to  superior  judges.  (People  v.  Campbell,  138  Cal.  11, 
70  Pae.  918.) 

Where  the  term  is  fixed  by  the  Constitution,  the  legislature  has  no 
power  to  extend  or  diminish  it.  (People  v.  Campbell,  138  Cal.  11,  70 
Pae.  918.) 

An  act  relieving  county  officers,  who  were  elected  prior  to  the  pas- 
sage of  the  act,  from  the  payment  of  their  own  assistants,  is  void. 
(Welsh  V.  Bramlet,  98  Cal.  219,  33  Pae.  66.) 

An  act  increasing  the  salary  of  a  policeman  during  his  term  of 
office  is  void.     (Darcy  v.  City  of  San  Jose,  104  Cal.  642,  38  Pae.  500.) 

A  contract  to  pay  a  city  attorney  extra  compensation  for  services 
rendered  during  his  term  of  office  is  void;  but  he  might  recover  for 
services  performed  under  such  contract  after  the  expiration  of  his 
term  of  office.  (Buck  v.  Eureka,  109  Cal.  504,  30  L.  E.  A.  409,  42  Pae. 
243.) 

An  act  increasing  the  compensation  of  county  officers  cannot  con- 
stitutionally increase  the  salaries  of  incumbents.  (Tulare  Co.  v.  Jef- 
ferds,  118  Cal.  303,  50  Pae.  427.) 

This  prohibition  applies  to  a  person  appointed  to  fill  a  vacancy 
caused  by  the  death  of  the  incumbent,  after  the  passage  of  the  law 
increasing  the  salary  of  the  officer.  (Storke  v.  Goux,  129  Cal.  526,  62 
Pae.  68.) 

Also  to  an  officer  holding  over  after  the  expiration  of  his  term,  by 
failure  of  his  successor  to  qualify.  (Rice  v.  National  City,  132  Cal. 
354,  64  Pae.  580.) 

The  legislature  may  change  the  form  of  compensation  from  fees  to 
a  salary,  provided  the  compensation  is  not  increased.  (McCauIey  v. 
Culbert,  144  Cal.  276,  77  Pae.  923.) 


Art.  XI,  §  9  CONSTITUTION  OF  1879.  438 

For  the  board  of  supervisors  to  allow  the  district  attorney  a  salary 
for  a  stenographer  not  provided  for  by  the  County  Government  Act 
at  the  time  of  his  election  is  a  violation  of  this  section.  (Humiston 
v.  Shaffer,  145  Cal.  195,  78  Pac.  651.) 

This  provision  was  intended  as  well  to  avoid  and  prevent  the  abuses 
which  may  arise  by  reason  of  arrangements  between  candidates  who 
are  reasonably  assured  of  election  or  appointment  and  the  legislative 
power,  to  take  effect  after  the  election  of  such  candidates  regardless 
of  the  time  of  the  enactment,  as  arrangements  made  after  such  elec- 
tion or  appointment.  (Woods  v.  Potter,  8  Cal.  App.  41,  95  Pac.  1125.) 
The  validity  of  a  law  fixing  compensation  is  not  to  be  judged  by 
the  date  of  its  adoption  but  by  the  date  when  it  took  effect.  (Woods 
V.  Potter,  8  Cal.  App.  41,  95  Pac.  1125.) 

In  the  absence  of  a  provision  in  the  charter  providing  a  salary  for 
members  of  the  city  council,  that  body  has  no  power  to  provide  such 
sajary  by  ordinance.  (Woods  v.  Potter,  8  Cal.  App.  41,  95  Pac.  1125.) 
The  expression  "term  of  office"  applies  only  to  officers  who  have  a 
fixed  and  definite  term,  and  does  not  apply  to  appointive  officers  who 
hold  at  the  pleasure  of  the  appointing  power,  (Harrold  v.  Barnum,  8 
Cal.  App.  21,  96  Pac.  104.) 

An  increase  in  a  separate  allowance  for  expenses  of  an  officer  serv- 
ing under  a  fixed  salary,  or  an  increase  in  the  number  of  deputies  or 
their  compensation,  does  not  violate  this  provision.  (Newman  v. 
Lester,  11  CaJ.  App.  577,  105  Pac.  785.) 

The  prohibition  of  this  section  refers  only  to  increase  of  compensa- 
tion, and  the  legislature  has  the  power  to  reduce  the  compensation  of 
any  county  or  township  officer  during  his  term  of  office,  or  to  change 
the  method  of  compensation,  provided  the  compensation  is  not  in- 
creased.    (Crockett  v.  Mathews,  157  Cal.  153,  106  Pac.  575.) 

Who  is  officer  within  prohibition  against  change  of  salary  during 

term.  See  note,  Ann.  Cas.  1914C,  214. 
Constitutional  provision  against  change  of  salary  during  term  of 
office  as  applicable  to  office  held  during  pleasure  of  appointing 
power.  See  note,  Ann.  Cas.  1913A,  316. 
Constitutional  provision  against  change  of  salary  during  term  as 
applicable  to  person  appointed  or  elected  to  fill  balance  of  un- 
expired term.     See  note,  16  Ann.  Cas.  1027. 

Constitutional  provision  against  increasing  compensation  during 
term  of  office  as  applicable  where  new  duties  are  imposed  on 
officer  after  taking  office.     See  note,  18  Ann.  Cas.  403. 

This  section  has  no  application  to  an  automatic  increase  in  official 
salary  due  to  the  passing  of  a  city,  not  by  legislative  act,  but  by  in- 
creased population,  from  one  class  to  another.  (Puterbaugh  v.  Wad- 
ham,  162  Cal.  61Li:23  Pac.  804.) 

This  sections  xs  reference  only  to  the  compensation  as  fixed  by  law 
when  the  officers'  terms  of  office  begin  and  the  legislature  may  lower 
the  compensation  and  afterward  raise  it,  provided  the  subsequent 
raise  is  not  in  excess  of  the  compensation  fixed  when  the  official  term 
began.     (Puterbaugh  v.  Wadham,  162  Cal.  611,  123  Pac.  804.) 

As  the  only  constitutional  limitation  upon  the  legislature  in  fixing 
the  compensation  of  officers  is  a  prohibition  against  increasing  their 


439  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  10 

salary  or  emoluments  during  the  term  for  which  the  officers  are 
elected,  it  is  permissible  for  the  legislature  to  make  any  such  increase 
to  apply  to  future  terms.  (County  of  Sacramento  v.  Pfund,  165  Cal. 
84,  130  Pac.  1041.) 

Where  the  result  of  an  act,  which  is  declared  to  take  effect  imme- 
diately, is  to  increase  the  compensation  of  certain  county  officers,  such 
act  cannot  be  operative  as  to  them  during  their  terms  of  office.  (Ap- 
plestill  V.  Gary,  18  Cal.  App.  385,  123  Pac.  228.) 

Where  after  an  incumbent  of  an  office  assumed  office  on  a  fixed 
salary,  under  the  obligation  to  perform  all  of  the  duties  of  the  office 
and  to  pay  any  deputies  therefrom,  when  the  county  concerned  be- 
longed to  a  certain  class,  the  legislature  changed  its  classification,  and 
reduced  the  salary  of  the  office,  and  provided  for  as  many  copyists  as 
might  be  required  who  should  be  paid  out  of  the  county  treasury,  and 
the  incumbent  appointed  copyists  to  be  so  paid,  it  must  be  presumed 
that  an  increase  of  compensation  would  thereby  result,  and  that  the 
legislature  did  not  intend  that  such  change  should  be  put  into  opera- 
tion prior  to  the  commencement  of  a  new  term.  (Williams  v.  Garey, 
19  Cal.  App.  769,  127  Pac.  824.) 

Where  the  compensation  of  an  officer  at  the  time  of  his  election  is 
fixed  at  a  lump  sum,  there  being  no  provision  for  the  appointment  of 
deputies,  then  the  allowance  of  a  deputy  during  such  term  constitutes 
an  increase  of  salary,  and  is  obnoxious  to  the  Constitution.  (Elder  v. 
Garey,  19  Cal.  App.  775,  127  Pac.  826.) 

Where  at  the  beginning  of  an  officer's  term  the  statute  allows  him  a 
gross  sum  to  cover  his  compensation  and  all  the  expenses  of  his  office, 
such  emolument  may  not  be  indirectly  increased  by  the  creation  of 
the  office  of  a  deputy  to  be  paid  by  the  county.  (County  of  Cala- 
veras V.  Poe,  167  Cal.  519,  140  Pac.  23.) 

TERM  OF  OFFICE. — An  act  changing  the  time  of  the  election  of 
certain  officers  so  that  no  election  will  be  held  until  after  the  expira- 
tion of  the  terms  of  the  present  incumbents  is  not  violative  of  this 
section,  although  they  are  entitled  to  hold  until  their  successors  are 
appointed.     (Treadwell  v.  Board  of  Suprs.  of  Yolo  Co.,  62  Cal.  563.) 

State  taxes,  no  release  or  discharge  from. 

Sec.  10,  This  section  Avas  repealed  by  amendment 
adopted  November  8,  1910.  This  amendment  was  part  of 
the  same  amendment  by  which  section  14  of  article  XIII  was 
added.     The  section  repealed  was  as  follows: 

Sec.  10.  No  county,  city,  town,  or  other  public  or  municipal 
corporation,  nor  the  inhabitants  thereof,  nor  the  property  therein, 
shall  be  released  or  discharged  from  its  or  their  proportionate 
sliare  of  taxes  to  be  levied  for  state  purposes,  nor  shall  commuta- 
tion for  such  taxes  be  authorized  in  any  form  whatsoever. 

RELEASE  OF  INDEBTEDNESS. — This  section  was  not  intended  to 
embrace  a  release  of  doubtful  claims  which  the  state  may  hold  against 
a  corporation.     (Burr  v.  Carbondale,  76  111.  455.) 


Art.  XI,  §  11  CONSTITUTION  OF  1879.  440 

Local    police,    sanitary,    and    other    regulations    may    be 
enforced. 

Sec.  11.  Any  county,  city,  town,  or  township  may  make 
and  enforce  within  its  limits  all  such  local,  police,  sanitary, 
and  other  regulations  as  are  not  in  conflict  with  general 
laws. 

NATURE  OF  GRANT  OF  POWER.— The  grant  is  to  the  body 
politic  and  not  to  the  city  council,  and  may  be  exercised  by  the  elec- 
tors directly  by  the  initiative  and  referendum.  (In  re  Pfahler,  150 
Cal.  71,  11  L.  E.  A.  (N.  S.)  1092,  11  Ann.  Cas.  911,  88  Pac.  270.) 

This  section  contains  a  direct  grant  of  power.  (Denton  v.  Vann,  8 
Cal.  App.  677,  97  Pac.  675.) 

The  legislature  cannot  limit  the  power  conferred  by  this  section  so 
long  as  it  does  not  conflict  with  any  general  law  of  the  state.  (In 
re  Ackerman,  6  Cal.  App.  5,  91  Pac.  429.) 

This  grant  must  be  construed  to  mean  counties  in  their  organized 
condition  as  bodies  politic,  and  is  an  authorization  by  the  Constitu- 
tion to  the  local  legislative  body  as  the  representative  of  the  county 
thus  organized  to  exercise  the  powers  thereby  granted  in  enacting 
local  laws.     (Denton  v.  Vann,  8  Cal.  App.  677,  97  Pac.  675.) 

The  enumeration  in  the  freeholders'  charter  of  Los  Angeles  of  cer- 
tain trades,  callings  and  occupations  which  may  be  prohibited  is  not 
a  limitation  upon  the  general  police  power  conferred  on  the  city  by 
this  section.  (In  re  Montgomery,  163  Cal.  457,  Ann.  Cas.  1914A,  130, 
125  Pac.  1070.) 

A  municipal  corporation  is  vested  with  authority  to  make  any  such 
reasonable  local  police  regulations  as  its  legislative  body  may  deem 
advisable,  controlled  only  by  the  limitation  that  they  must  not  con- 
flict with  any  general  laws  enacted  by  the  legislature  on  the  subject. 
(Pasadena  School  District  v.  Pasadena,  166  Cal.  7,  Ann.  Cas.  1915B, 
1039,  47  L.  E.  A.   (N.  S.)   892,  134  Pac.  985.) 

The  board  of  supervisors  may  make  and  enforce  within  the  county 
all  such  police  and  sanitary  regulations  as  are  not  in  conflict  with 
general  laws.      (Ex  parte  John,  17  Cal.  App.  58,  118  Pac.  722.) 

This  section  does  not  confer  power  upon  a  municipality  to  regulate 
rates  or  service  or  in  any  other  way  to  regulate  the  relationship  be- 
tween a  utility  and  its  customers  and  patrons,  as  distinguished  from 
the  city  or  its  inhabitants  in  general.  (Pratt  v.  Spring  Valley  Water 
Co.,  4  C.  E.  C.  1077,  1082.) 

LOCAL,  POLICE  AND  SANITARY  LAWS.— The  police  power  is 
subordinate  to  the  power  of  the  federal  government  to  regulate  com- 
merce.     (Lin  Sing  v.  Washburn,  20  Cal.  534.) 

The  "other  regulations"  mentioned  in  this  section  must  be  limited 
to  objects  similar  to  those  denominated  police  and  sanitary.  (Ex 
parte  Hodges,  87  Cal.  162,  25  Pac.  277.) 

Any  restriction  of  the  rights  of  individuals  to  pursue  a  lawful  avo- 
cation must  extend  to  all  individuals  who  might  exercise  that  right 
within  the  same  district.  (County  of  Los  Angeles  v.  Hollywood  Cem. 
Assn.,  124  Cal.  344,  71  Am.  St.  Eep.  75,  57  Pac.  153.) 


441  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  11 

Any  practice  or  business  the  tendency  of  which,  as  shown  by  experi- 
ence, is  to  wealcen  or  corrupt  the  morals  of  those  who  follow  it  or  to 
encourage  idleness,  instead  of  habits  of  industry,  is  a  legitimate  sub- 
ject of  police  regulation.  Gambling  is  such  a  practice.  (Ex  parte 
Tuttle,  91  Cal.  589,  27  Pac.  933.) 

The  question  as  to  what  measures  are  needful  or  appropriate  to  be 
taken  in  the  exercise  of  the  police  power  is  primarily  for  the  legisla- 
tive body  to  determine;  and  such  determination  will  not  be  disturbed 
by  the  courts,  unless  the  fundamental  rights  of  the  citizen  are  as- 
sailed.    (Ex  parte  Tuttle,  91  Cal.  589,  27  Pac.  933.) 

It  is  not  necessary  to  the  exercise  of  the  police  power  in  regulating 
a  business  that  it  shall  constitute  a  nuisance  per  se.  (Ex  parte  Lacey, 
108  Cal.  326,  49  Am.  St.  Rep.  93,  38  L.  R.  A.  640,  41  Pac.  411.) 

The  right  to  regulate  is  not  confined  to  such  interference  with  the 
public  welfare  and  comfort  as  comes  strictly  within  the  common-law 
definition  of  nuisance.     (In  re  Junqua,  10  Cal.  App.  602,  103  Pac.  159.) 

The  legislative  determination  of  what  is  a  proper  exercise  of  police 
powers  is  not  final  but  is  subject  to  supervision  by  the  courts,  which 
will  interfere  when  the  case  is  made  plain,  either  upon  the  face  of 
the  measure  or  by  extraneous  evidence,  that  needless  oppression  is 
worked  or  that  constitutional  rights  are  invaded,  or  when  the  local 
ordinance  is  unreasonable  and  oppressive.  (In  re  Junqua,  10  Cal. 
App.  602,  103  Pac.  159.) 

Police  power  is  limited  to  such  measures  as  are  reasonable  in  their 
application  and  which  tend  in  some  appreciable  degree  to  promote, 
protect,  or  preserve  the  public  health,  morals,  or  safety,  or  the  general 
welfare.  (Ex  parte  Quarg,  149  Cal.  79,  117  Am,  St,  Eep.  115,  9  Ann. 
Cas.  747,  5  L.  R.  A.  (N.  S.)   183,  84  Pac.  766.) 

The  business  of  conducting  a  laundry  is  not  unlawful,  and  cannot 
be  made  to  depend  upon  the  will  of  any  number  of  citizens  or  prop- 
erty owners.  (Ex  parte  Sing  Lee,  96  Cal.  354,  31  Am.  St.  Rep.  218,  24 
L,  R,  A,  195,  31  Pac.  245.) 

Police  power  is  exercised  in  the  enforcement  of  a  penalty  prescribed 
for  a  noncompliance  with  law.  (Merced  County  v.  Helm,  102  Cal. 
159,  36  Pac.  399.) 

The  legislature  may  delegate  to  boards  of  supervisors  of  counties 
power  to  pass  local,  police  and  sanitary  regulations.  (Ex  parte 
Shrader,  33  Cal.  279.) 

This  provision  does  not  authorize  cities  to  change  their  charters,  or 
to  revolutionize  the  city  government  or  abrogate  a  department  there- 
of.    (People  v.  Newman,  96  Cal.  605,  31  Pac.  564.) 

Under  the  charter  the  supervisors  have  power  to  pass  ordinances 
placing  such  restrictions  upon  the  use  of  any  property  or  the  conduct 
of  any  business  as  may  be  necessary  for  the  public  health.  (Laurel 
Hill  Cemetery  v.  San  Francisco,  152  Cal.  464,  27  L.  R.  A.  (N.  S.)  260, 
14  Ann.  Cas.  1080,  93  Pac.  70.) 

This  section  includes  the  power  to  amend  an  existing  ordinance 
upon  the  same  subject.  (Foster  v.  Board  of  Police  Commrs.,  102  Cal. 
483,  41  Am.  St.  Rep.  194,  37  Pac.  763.) 

So  far  as  mere  police  regulations  are  concerned,  if  city  and  count}' 
ordinances  conflict,  the  police  regulations  made  by  the  city  will  con- 
trol within  the  limits  of  the  city.     (Ex  parte  Roach,  104  Cal.  272,  37 


Art.  XI,  §  11 


CONSTITUTION   OF   1879. 


442 


Pae.  1044;  Ex  parte  Mansfield,  106  Cal.  400,  39  Pac.  775;  Los  Angeles 
County  V.  Eikenberry,  131  Cal.  461,  63  Pac.  766;  Ex  parte  Pfirrmann, 
134  Cal.  143,  66  Pac.  205.) 

But  a  county  license  upon  the  sale  of  liquor,  collected  not  merely 
as  a  regulation  but  for  revenue,  may  be  collected  within  a  city  al- 
though the  city  has  collected  a  license  tax  for  the  same  business. 
(Los  Angeles  County  v.  Eikenberry,  131  Cal.  461,  63  Pac.  766.) 

A  city  ordinance  is  not  a  general  law  within  the  meaning  of  this 
section.  (Los  Angeles  County  v.  Eikenberry,  131  Cal.  461,  63  Pac. 
766.) 

A  sanitary  district  is  not  a  municipal  corporation,  and  has  none  of 
the  powers  granted  by  this  section,  nor  can  the  legislature  confer  such 
powers  upon  it.     (In  re  Werner,  129  Cal.  567,  62  Pac.  97.) 

Under  this  section  the  right  of  a  water  company  to  occupy  a  public 
street  of  a  municipality  with  a  ditch  is  subject  to  regulation  by  the 
muiiicipality.  (Santa  Ana  v.  Santa  Ana  Valley  Irr.  Co.,  163  Cal.  211, 
124  Pac.  847.) 

A  county  board  of  supervisors  has  authority  to  submit  to  the  voters 
of  the  various  precincts  in  the  county  questions  relating  to  the  is- 
suance of  liquor  licenses  in  such  precincts,  and  to  select  the  sub- 
division in  which  the  vote  may  be  taken.  (In  re  Coombs,  169  Cal. 
484,  147  Pac.  131.) 

The  regulation  of  the  ditch  of  a  water  company  within  a  city, 
with  a  view  to  protecting  the  health  and  safety  of  the  inhabitants 
of  the  city,  is  a  police  or  sanitary  regulation,  and  the  power  to  make 
such  regulations  is  vested  exclusively  in  the  municipal  authorities. 
(Santa  Paula  v.  Santa  Clara  Water  &  Irrigation  Co.,  3  C,  K.  C.  143, 
144.) 

Conflict  with  general  laws. — An  act  which  is  violative  of  an  express 
provision  of  the  Constitution  cannot  be  upheld  as  a  police  regulation. 
(San  Francisco  v.  Liverpool  etc.  Ins.  Co.,  74  Cal.  113,  5  Am.  St.  Kep. 
425,  15  Pac.  380.) 

A  county  ordinance  in  conflict  with  a  valid  general  law  is  void. 
(San  Lais  Obispo  County  v.  Graves,  84  Cal.  71,  23  Pac.  1032;  Ex  parte 
Keeney,  84  Cal.  304,  24  Pac.  34.) 

But  this  is  not  true  of  a  conflict  between  a  valid  county  ordinance 
and  an  unconstitutional  general  statute.  (San  Luis  Obispo  County  v. 
Graves,  84  Cal.  71,  23  Pac.  1032.) 

A  provision  of  a  city  ordinance  prohibiting  the  sale  of  spirituous 
liquors  in  a  city  is  not  in  conflict  with  the  general  law,  which  shows 
a  tendency  simply  to  regulate  the  sale  of  liquors.  (Ex  parte  Camp- 
bell, 74  Cal.  20,  5  Am.  St.  Eep.  418,  15  Pac.  318;  Ex  parte  Noble,  96 
Cal.  362,  31  Pac.  224.) 

An  ordinance  making  it  unlawful  to  visit  a  gambling-house  is  not  in 
conflict  with  a  provision  of  the  general  law  making  it  unlawful  to  bet 
at  such  house.     (Ex  parte  Boswell,  86  Cal.  232,  24  Pac.  1060.) 

An  ordinance  undertaking  to  punish  precisely  the  same  acts  which 
are  punishable  under  the  general  law  of  the  state  is  to  be  deemed  in 
conflict  with  such  general  law.  (Ex  parte  Stephen,  114  Cal.  278,  46 
Pac.  86;  In  re  Sic,  73  Cal.  142,  14  Pac  405.) 

The  mere  fact  that  a  certain  provision  of  a  city  ordinance  is  in  con- 
flict with  the  general  law  will  not  invalidate  the  entire  ordinance  if 


443  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  11 

the  provisions  thereof  are  separable,     (Ex  parte  Christensen,  85  Cal. 
208,  24  Pac.  747.) 

An  ordinance  containing  certain  regulations  as  to  the  burden  of 
proof  and  the  effect  of  certain  acts  as  evidence  is  void.  (Ex  parte 
Christensen,  85  Cal.  208,  24  Pac.  747.) 

A  municipal  ordinance  making  it  a  misdemeanor  to  fail  to  remove 
an  obstruction  of  a  sidewalk  is  not  in  conflict  with  the  provisions  of 
the  general  law  declaring  such  an  obstruction  a  nuisance  and  punish- 
able as  such,  since  the  municipality  might  legalize  a  partial  obstruc- 
tion of  a  street.     (Ex  parte  Taylor,  87  Cal.  91,  25  Pac.  258.) 

When  the  state  law  provides  a  general  and  municipal  scheme  to 
prevent  the  adulteration  and  sale  of  milk  and  dairy  products,  a  mu- 
nicipal ordinance  establishing  a  different  standard  of  purity  is  void 
(In  re  Desanta,  8  Cal.  App.  295,  96  Pac.  1027.) 

An  ordinance  imposing  a  fine  not  less  than  twenty-five  dollars  nor 
more  than  five  hundred  dollars,  and  imprisonment  not  less  than  ten 
nor  more  than  one  hundred  days  is  in  conflict  with  a  general  law  im- 
posing a  fine  of  not  less  than  twenty-five  dollars  nor  more  than  two 
hundred  dollars  and  imprisonment  not  less  than  ten  nor  more  than 
one  hundred  days.     (In  re  Desanta,  8  Cal.  App.  295,  96  Pac.  1027.) 

An  ordinance  in  direct  conflict  with  a  subsequently  enacted  general 
law  cannot  be  enforced.  (In  re  Desanta,  8  Cal.  App.  295,  96  Pac. 
1027.) 

A  municipal  ordinance  licensing  brothels  is  subject  to  the  state  law 
punishing  the  crime  of  keeping  a  house  of  prostitution.  (Farmer  v. 
Behmer,  9  Cal.  App.  773,  100  Pac.  901.) 

An  ordinance  imposing  a  less  punishment  than  that  imposed  by  the 
general  law  for  the  same  offense  is  void.  (Ex  parte  Sweetman,  5  Cal. 
App.  577,  90  Pac.  1069.) 

A  city  ordinance  imposing  a  penalty  for  having  lottery  tickets  in 
one's  possession,  greater  than  the  penalty  provided  by  the  general 
laws  for  kindred  and  more  serious  offenses,  is  in  conflict  with  the  gen- 
eral laws  and  void.     (Ex  parte  Solomon,  91  Cal.  440,  27  Pac.  757.) 

A  city  ordinance  providing  that  no  opium  shall  be  sold  without  a 
prescription  of  a  physician  is  not  in  conflict  with  the  state  law  pro- 
hibiting the  sale  of  opium  unless  a  record  be  kept  of  the  sale  and  the 
package  marked  "poison."  (Ex  parte  Hong  Shen,  98  Cal.  681,  33  Pac. 
799.) 

An  ordinance  is  not  inconsistent  with  the  general  law  merely  be- 
cause it  makes  another  and  different  regulation  on  the  same  subject, 
when  there  is  no  direct  conflict  between  its  terms  and  the  provisions 
of  the  state  law.     (Ex  parte  Hong  Shen,  98  Cal.  681,  33  Pac.  799.) 

Where  the  penalty  imposed  for  the  violation  of  an  ordinance  con- 
flicts with  the  provisions  of  the  Penal  Code,  the  penal  clause  of  the 
ordinance  is  void.     (Ex  parte  Mansfield,  106  Cal.  400,  39  Pac.  775.) 

An  ordinance  declaring  it  unlawful  for  any  person  to  have  in  his 
possession  any  lottery  ticket,  unless  it  be  shown  that  such  possession 
is  innocent,  is  void  as  in  conflict  with  the  general  presumption  of  in- 
nocence. (In  re  Wong  Hane,  108  Cal.  680,  49  Am.  St.  Rep.  138,  41 
Pac.  693.) 

An  ordinance  forbidding  further  interment  in  the  city  cemetery  is 
not  in  conflict  with  section  3035  of  the  Political  Code.  (La  Societa 
etc.  V.  San  Francisco,  131  Cal.  169,  53  L.  E.  A.  382,  63  Pac.  174.) 


Art.  XI,  §  11  CONSTITUTION  OF  1879.  444 

It  is  competent  for  a  city  ordinance  to  prohibit  all  games  playei] 
for  money  which  are  not  specifically  denounced  by  the  statute  (In 
re  Murphy,  128  Cal.  29,  60  Pac.  465.) 

The  fact  that  an  ordinance  prohibiting  games  for  money  includes 
by  way  of  general  description,  games  prohibited  by  statute,  as  well 
as  those  not  so  prohibited,  does  not  affect  the  validity  of  the  ordi- 
nance; but  all  games  so  prohibited  by  the  general  laws  must  be  ex- 
cluded from  the  operation  of  the  ordinance.  (In  re  Murphy  128 
Cal.  29,  60  Pac.  465.) 

A  city  ordinance  fixing  the  limit  of  speed  for  vehicles  in  all  parts 
of  the  city  at  twelve  miles  per  hour,  regardless  of  crossings  or  inter- 
secting streets  or  of  obstructions  to  the  view  of  the  operator  in  ap- 
proaching an  intersecting  way,  is  in  conflict  with  the  Motor  Vehicle 
Act  of  1913.  (Matter  of  Application  of  Smith,  26  Cal.  App.  116,  146 
Pac.  82.) 

Under  this  section,  section  549  of  the  Civil  Code,  and  subdivision  14 
of  section  862  of  the  Municipal  Corporation  Act,  cities  of  the  sixth 
class  have  power  to  make  a  regulation  requiring  water  companies  to 
rnake  service  connections  and  install  meters  free  of  charge  in  the  city 
limits.  (Title  Guarantee  etc.  Co.  v.  Railroad  Commission,  168  Cal. 
295,  142  Pac.  878.) 

Under  this  section  any  county,  city,  town  or  township  has  the  right 
to  wholly  prohibit  the  carrying  on  of  the  retail  liquor  business,  and 
this  includes  the  power  to  determine  in  what  places  in  a  county,  etc., 
such  business  may  or  may  not  be  carried  on.  (McRae  v.  Pine,  25  Cal 
App.  594,  144  Pac.  983.) 

A  county  ordinance  fixing  the  maximum  penalty  for  the  sale  of 
liquor  without  a  license,  so  as  to  bring  an  infraction  of  the  ordinance 
within  the  jurisdiction  of  the  superior  court,  is  in  conflict  with  section 
435  of  the  Penal  Code,  and  therefore  void.  (Arfsten  v.  Superior 
Court,  20  Cal.  App.  269,  128  Pac.  949.) 

A  county  ordinance  regulating  the  liquor  traffic  within  the  county 
limits  conflicts  with  the  Local  Option  Act  of  1911,  allowing  subdivi- 
sions of  a  county  to  vote  on  the  liquor  question,  and  is  therefore  void. 
(Matter  of  Zany,  20  Cal.  App.  360,  129  Pac.  295.) 

So  far  as  any  authority  of  counties,  cities,  and  towns  in  the  matter 
of  "local,  police,  sanitary  and  other  regulations"  is  based  on  this  sec- 
tion, it  is  subject  at  all  times  to  the  general  laws,  and  such  local  regu- 
lations must  give  way  to  the  general  laws  so  far  as  they  are  in  conflict 
therewith.     (Ex  parte  Beck,  162  Cal.  701,  124  Pac.  543.) 

A  county  ordinance  forbidding  the  sale  of  liquor  except  at  a  fixed 
place  of  business  and  unless  a  license  has  been  obtained,  and  for- 
bidding the  soliciting  or  receiving  any  order  for  the  sale  or  delivery 
of  liquor,  except  in  precincts  where  licenses  can  be  obtained,  and 
providing  that  no  license  shall  be  granted  unless  at  the  last  preceding 
general  election  at  which  the  question  of  granting  liquor  licenses 
was  submitted  to  the  people,  the  majority  of  the  people  in  the  pre- 
cinct for  which  the  license  is  asked  voted  in  favor  of  granting  such 
licenses,  does  not  conflict  with  the  so-called  "Wyllie  Law."  (In  re 
Coombs,   169   Cal.   484,   147   Pac.    131.) 

Reasonableness,  etc. — A  municipal  ordinance  must  be  consistent 
with  the  general  powers  and  purposes  of  the  corporation,  must   har- 


445  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  11 

monize  with  the  general  laws,  the  municipal  charter,  and  the  princi- 
ples of  the  common  law,  and  can  have  no  extraterritorial  force  unless 
by  express  permission  of  the  sovereign  power.  (South  Pasadena  v. 
Los  Angeles  Terminal  Ry.  Co.,  109  Cal.  315,  41  Pac.  1093;  Ex  parte 
Green,  94  Cal.  387,  29  Pac.  783;  In  re  Ah  You,  88  Cal.  99,  22  Am.  St. 
Rep.  280,  11  L.  R.  A.  408,  25  Pac.  974;  In  re  Application  of  Glendale 
&  Eagle  Rock  Ry.  Co.,  4  C.  R.  C.  320,  324.) 

But  where  the  legislature  in  terms  confers  upon  a  municipal  corpo- 
ration the  power  to  pass  ordinances  of  a  specified  character,  an  ordi- 
nance passed  in  pursuance  thereof  cannot  be  impeached  as  invalid  be- 
cause it  would  have  been  regarded  as  unreasonable  if  it  had  been 
passed  under  the  incidental  powers  of  the  corporation,  or  under  a 
grant  of  power  general  in  its  nature.  But  where  the  power  to  legi3- 
late  on  a  given  subject  is  conferred  and  the  mode  of  its  exercise  is 
not  prescribed,  then  the  ordinance  passed  in  pursuance  thereof  must 
be  a  reasonable  exercise  of  the  power,  or  it  will  be  pronounced  void. 
(Ex  parte  Chin  Yan,  60  Cal.  78.) 

When  the  question  as  to  the  unreasonableness  of  a  municipal  ordi- 
nance is  in  doubt,  the  ordinance  will  be  upheld;  but  when  the  ordi- 
nance is  clearly  unreasonable,  it  will  be  held  void.  (Ex  parte  Mc- 
Kenna,  126  Cal.  429,  58  Pac.  916.) 

The  question  of  the  reasonableness  of  an  ordinance  is  to  be  deter- 
mined by  the  court  from  the  ordinance,  and  not  by  the  jury  from  evi- 
dence of  facts  not  appearing  upon  the  face  of  the  ordinance.  (Mer- 
ced County  V.  Fleming,  111  Cal.  46,  43  Pac.  392.) 

In  determining  whether  or  not  an  ordinance  regulating  a  lawful 
business  is  reasonable  the  court  may  consider  matters  dehors  the  ordi- 
nance, but  not  the  motives  of  the  supervisors.  (In  re  Smith,  143  Cal. 
368,  77  Pac.  180.) 

An  ordinance  ma^  be  reasonable  as  applied  to  the  regulation  of 
cemeteries  within  a  city  or  town,  which  would  be  unreasonable  if  ap- 
plied to  all  parts  of  a  county  thinly  populated  in  many  of  its  parts. 
(County  of  Los  Angeles  v.  Holywood  Cem.  Assn.,  124  Cal.  344,  71  Am. 
St.  Rep.  75,  57  Pac.  153.) 

An  ordinance  restricting  the  use  of  private  property  in  the  interest 
of  the  public  health  must  bear  a  rational  relation  to  the  object  sought 
to  be  obtained  and  cannot  be  arbitrary  or  unreasonable,  or  made  a 
cloak  for  the  arbitrary  interference  with  or  suppression  of  a  lawful 
business.  But  the  courts  will  not  interfere  with  the  exercise  of  legis- 
lative discretion  unless  it  clearly  appears  that  such  discretion  has 
been  arbitrarily  or  unreasonably  exercised.  (Laurel  Hill  Cemetery  v. 
San  Francisco,  152  Cal.  464,  14  Ann.  Cas.  1080,  27  L.  R.  A.  (N.  S.) 
260,  93  Pac.  70.) 

An  ordinance  imposing  a  fine  not  exceeding  one  thousand  dollars 
and  imprisonment  not  exceeding  six  months,  for  uttering  profane  and 
abusive  language  in  the  presence  of  other  persons,  is  not  unreasonable. 
(McDonald  v.  Taylor,  89  Cal.  42,  26  Pac.  595.) 

A  city  ordinance  prohibiting  the  carrying  of  concealed  weapons  by 
any  person  other  than  public  officers  and  travelers,  without  a  permit 
of  the  police  commissioners,  and  prescribing  a  fine  of  not  less  than 
two  hundred  and  fifty  and  not  exceeding  five  hundred  dollars,  or  im- 
prisonment not  less  than  three  and  not  exceeding  six  months,  or  both, 


Art.  XI,  §  11 


CONSTITUTION   OF   1879. 


446 


does  not  impose  any  excessive  or  unreasonable  penalty.  (Ex  parte 
Cheney,  90  Cal.  617,  27  Pac.  436.) 

An  ordinance  making  a  violation  thereof  punishable  by  imprison- 
n»ent  for  ten  days  and  a  fine  of  one  hundred  and  fifty  dollars,  and 
imprisonment  in  case  of  nonpayment  of  the  fine  at  the  rate  of  two 
dollars  a  day,  is  not  unreasonable.  (Ex  parte  Green,  94  Cal.  387,  29 
Pac.  783.) 

A  municipal  ordinance  permitting  a  fine  of  not  less  than  twenty 
and  not  more  than  one  thousand  dollars  for  visiting  a  house  of  ill- 
fame  is  unreasonable,  and  not  in  harmony  with  the  general  law.  (In 
re  Ah  You,  88  Cal.  99,  22  Am,  St.  Rep.  280,  11  L.  E.  A.  408,  25  Pac. 
974.) 

A  county  ordinance  prohibiting  the  maintenance  of  gasworks  in  a 
sparsely  settled  rural  district,  and  which  has  the  effect  to  stop  the 
operation  of  the  gasworks  of  the  petitioner,  in  the  immediate  vicinity 
of  which  there  are  no  dwelling-houses,  is  unreasonable.  (In  re  Smith, 
143  Cal.  368,  77  Pac.  180.) 

An  ordinance  making  it  a  misdemeanor  to  sell  gas  at  a  higher  rate 
than  that  fixed  by  law  is  not  unreasonable  or  contrary  to  the  policy 
of  the  state.  (Denninger  v.  Recorder's  Court,  145  Cal.  629,  79  Pac. 
360.) 

Valid  ordinances. — In  accordance  with  the  foregoing  general  prin- 
ciples, the  following  ordinances  have  been  held  valid  as  police  and 
sanitary  measures:  An  ordinance  for  the  removal  of  shade  trees  grow- 
ing in  the  sidewalks  of  public  streets  (Vanderhurst  v.  Tholcke,  113 
Cal.  147,  35  L.  R.  A.  267,  45  Pac.  266);  an  ordinance  providing  for  a 
sewer  farm  outside  of  a  city  (McBean  v.  Fresno,  112  Cal.  159,  53  Am. 
St.  Rep.  191,  31  L.  R.  A.  794,  44  Pac.  358);  an  ordinance  prohibiting 
the  conducting  of  any  carpet-beating  machine  within  one  hundred 
feet  of  any  church,  schoolhouse,  residence,  or  dwelling-house  (Ex 
parte  Lacey,  108  Cal.  326,  49  Am.  St.  Rep.  93,  38  L.  R.  A.  640,  41 
Pac.  411);  an  ordinance  providing  for  the  improvement  of  the  chan- 
nel and  banks  of  a  river  passing  through  the  city  (De  Baker  v.  South- 
ern Cal.  Ry.  Co.,  106  Cal.  257,  46  Am.  St.  Rep.  237,  39  Pac.  610);  a 
city  ordinance  forbidding  the  beating  of  drums  in  the  traveled  streets 
of  a  city,  without  the  permission  of  the  president  of  the  board  of 
trustees  (In  re  Flaherty,  105  Cal.  558,  27  L.  R.  A.  529,  38  Pac.  981); 
an  ordinance  providing  that  no  liquor  license  shall  be  granted  to  any 
person  who  has  conducted  the  business  of  selling  liquors  in  any  jilace 
where  females  are  employed  (Foster  v.  Board  of  Police  Commrs.,  102 
Cal.  483,  41  Am.  St.  Rep.  194,  37  Pac.  763);  an  ordinance  providing 
that  no  license  shall  be  issued  to  persons  engaged  in  the  sale  of 
liquors  in  dance-cellars  or  dance-halls,  or  in  places  where  musical, 
theatrical,  or  other  public  exhibitions  are  given,  and  where  feiiiales 
attend  as  waitresses  (Ex  parte  Hayes,  98  Cal.  555,  20  L.  R.  A.  701, 
33  Pac.  337);  an  ordinance  fixing  the  license  for  conducting  a  saloon 
where  females  are  employed  and  where  intoxicating  liquors  are  sold 
in  less  quantities  than  one  quart  at  a  higher  rate  than  a  license  for 
conducting  a  saloon  where  females  are  not  employed  (Ex  parte 
Felchlin,  96  Cal.  360,  31  Am.  St.  Rep.  223,  31  Pac.  224,  approving 
opinion  of  McKinstry,  J.,  in  Matter  of  Maguire,  57  Cal.  604,  40  Am. 
Rep.  125) ;  a  city  ordinance  prohibiting  the  selling  of  pools  on  horse- 


44:7  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  11 

races,  except  within  the  inclosure  of  a  race-track  where  the  race  is 
to  be  run  (Ex  parte  Tuttle,  91  Cal.  589,  27  Pac.  933);  an  ordinance 
making  the  issuance  of  a  liquor  license  depend  upon  the  permission 
of  a  majority  of  the  police  commissioners  or  the  approval  of  twelve 
property  owners  in  the  block  in  which  the  business  is  carried  on  (Ex 
parte  Christensen,  85  Cal.  208,  24  Pac.  747;  affirmed  in  Crowley  v. 
Christensen,  137  U.  S.  86,  34  L.  Ed.  620,  11  Sup.  Ct.  Rep.  13);  an  act 
providing  for  the  exclusion  of  all  unvaccinated  children  from  the  pub- 
lic schools  (Abeel  v.  Clark,  84  Cal.  226,  24  Pac.  383);  a  city  ordinance 
making  it  unlawful  to  visit  a  place  for  the  practice  of  gambling  (Ex 
parte  Lane,  76  Cal.  587,  18  Pac.  677);  an  ordinance  prohibiting  the 
maintenance  within  the  city  limits  of  any  tippling-house,  dramshop,  or 
barroom,  where  spirituous  liquors  are  sold  or  given  away  (Ex  parte 
Campbell,  74  Cal.  20,  5  Am.  St.  Eep.  418,  15  Pac.  318) ;  an  ordinance 
which  prohibits  any  person,  for  the  purpose  of  prostitution,  to  visit 
any  building  kept  for  the  purpose  of  prostitution  (Ex  parte  Johnson, 
73  Cal.  228,  15  Pac.  43);  an  ordinance  prohibiting  the  alteration  or  re- 
pair of  any  wooden  building  within  certain  designated  fire  limits,  with- 
out permission  of  the  fire  wardens  and  approval  of  a  majority  of  the 
committee  on  fire  department  and  the  mayor  (Ex  parte  Fiske,  72  Cal. 
125,  13  Pac.  310);  an  ordinance  prohibiting  the  keeping  of  more  than 
two  cows  within  certain  portions  of  a  city  (In  re  Linehan,  72  Cal. 
114,  13  Pac.  170);  an  ordinance  prohibiting  the  carrying  on  of  a  pub- 
lic laundry  within  the  city  limits,  except  within  prescribed  boundaries 
(In  re  Hang  Kie,  69  Cal.  149,  10  Pac.  327);  an  ordinance  prohibiting 
the  carrying  on  of  a  laundry  without  the  consent  of  the  board  of 
supervisors,  except  in  a  brick  or  stone  building  (In  re  Yick  Wo,  68 
Cal.  294,  58  Am.  Rep.  12,  9  Pac.  139;  reversed  by  the  supreme  court 
of  the  United  States  in  Yick  Wo  v.  Hopkins,  118  U.  S.  356,  20  L.  Ed. 
220) ;  an  ordinance  providing  that  all  buildings  used  as  laundries  shall 
be  constructed  but  one  story  in  height,  with  brick  or  stone  walls,  and 
with  metal  roofs,  doors,  and  window  shutters  (Ex  parte  White,  67 
Cal.  102,  7  Pac.  186);  a  provision  of  a  city  charter  prohibiting  the 
slaughtering  of  animals  and  the  maintenance  of  slaughter-houses 
within  the  city  (Ex  parte  Heilbron,  65  Cal.  609,  4  Pac.  648);  an  ordi- 
nance making  it  unlawful  for  any  person  to  conduct  a  laundry  within 
certain  limits,  without  a  certificate  from  the  health  officer  as  to  its 
sanitary  condition,  and  a  certificate  from  one  of  the  fire  wardens  as 
to  the  condition  of  the  heating  appliances,  and  forbidding  the  opera- 
tion of  any  laundry  between  10  P.  M.  and  6  A.  M.,  or  on  Sundays 
(Ex  parte  Moynier,  65  Cal.  33,  2  Pac.  728);  an  ordinance  prohibiting 
the  utterance  of  profane  language  in  the  hearing  of  two  or  more  per- 
sons (Ex  parte  Delaney,  43  Cal.  478);  an  ordinance  forbidding  the 
sale  of  milk  of  cows  fed  upon  still  slops,  etc.  (.Johnson  v,  Simonton, 
43  Cal.  242) ;  an  ordinance  making  it  unlawful  to  play  upon  any  musi- 
cal instrument,  etc.,  in  any  saloon,  etc.,  after  midnight  (Ex  parte 
Smith  &  Keating,  38  Cal.  702);  an  ordinance  making  it  unlawful  for 
any  female  to  be  in  any  saloon,  etc.,  after  midnight  (Ex  parte  Smith 
&  Keating,  38  Cal.  702);  an  ordinance  providing  that  no  person  shall 
establish  or  maintain  any  slaughter-house,  keep  herds  of  more  than 
five  swine,  keep  or  cure  hides,  slaugliter  cattle,  etc.,  in  any  part  of 
the  city   and   county   (Ex  parte  Shradcr,  33   Cal.  279);   an  ordinance 


Art.  XI,  §  11  CONSTITUTION  OF  1879.  448 

making  it  unlawful  for  any  person  to  have  in  his  possession  any  lot- 
tery ticket,  etc.  (Ex  parte  MeCIain,  134  Cal.  110,  86  Am.  St.  Eep.  243, 
54  L.  R.  A.  779,  66  Pac.  69);  an  ordinance  making  it  unlawful  to  ex- 
hibit in  any  barred  or  barricaded  house  or  room  or  in  any  place  built 
or  protected  in  a  manner  to  make  it  difficult  of  access  to  police  offi- 
cers, when  three  or  more  persons  are  present,  any  cards,  etc.  (Matter 
of  Ah  Cheung,  136  Cal.  678,  69  Pae.  492);  an  ordinance  of  the  city 
and  county  of  San  Francisco  prohibiting  interments  of  dead  bodies 
within  the  city  limits  (Odd  Fellows'  Cem.  Assn.  v.  San  Francisco,  140 
Cal.  226,  73  Pac.  987) ;  an  act  providing  that  any  person  excluded  from 
a  place  of  amusement  may  recover  his  actual  damages  and  a  penalty 
(Greenberg  v.  "Western  Turf  Assn.,  140  Cal.  357,  73  Pac.  1050);  an 
ordinance  making  it  unlawful  to  maintain  gasworks  within  certain 
defined  limits  (Dobbins  v.  Los  Angeles,  139  Cal.  179,  96  Am.  St.  Rep. 
95,  72  Pac.  970;  reversed  by  Dobbins  v.  Los  Angeles,  195  U.  S.  223, 
49  L.  Ed.  165,  25  Sup.  Ct.  Rep.  18;  In  re  Daly,  139  Cal.  216,  72  Pac. 
1097) ;  an  ordinance  requiring  the  exclusive  removal  of  all  garbage  by 
the  city  to  be  consumed  at  the  city  crematory  (In  re  Zhizhuzza,  147 
Cal.  328,  81  Pac.  955);  an  ordinance  employing  an  expert  medical  em- 
ployee as  health  officer  (Valle  v.  Shaffer,  1  Cal.  App.  183,  81  Pac. 
1028) ;  an  ordinance  suppressing  public  billiard  and  pool  rooms  (Ex 
parte  Murphy,  8  Cal.  App.  440,  97  Pac.  199);  an  ordinance  forbidding 
or  regulating  the  sale  of  poisons  (Ex  parte  Hallawell,  8  Cal.  App.  563, 
97  Pac.  320);  reasonable  regulations  governing  the  use  of  streets  by 
holders  of  franchises  (Merced  Falls  Gas  etc.  Co.  v.  Turner,  2  Cal. 
App.  720,  84  Pac.  239);  an  ordinance  prohibiting  the  selling,  storing 
or  keeping  for  sale  of  intoxicating  liquors,  except  at  private  resi- 
dences or  for  medicinal,  mechanical  or  scientific  purposes  (Selma  v. 
Brewer,  9  Cal.  App.  70,  98  Pac.  61);  an  ordinance  forbidding  the  alco- 
holic liquor  traffic  (Ex  parte  Mogensen,  5  Cal.  App.  596,  90  Pac.  1063, 
91  Pae.  334);  an  ordinance  forbidding  the  escape  of  soot  from  any 
furnace  in  which  distillate  or  crude  oil  is  consumed  (In  re  Junqua,  10 
Cal.  App.  602,  103  Pac.  159) ;  an  ordinance  forbidding  the  mainte- 
nance of  a  laundry  in  the  city  limits  in  any  building  used  in  part  for 
a  public  store  (In  re  San  Chung,  11  Cal.  App.  511,  105  Pac.  609) ;  an 
ordinance  regulating  the  laying  of  sewers  in  the  public  streets  (Har- 
ter  V.  Barkley,  158  Cal.  742,  112  Pac.  556) ;  an  ordinance  prohibiting  the 
business  of  selling  intoxicating  liquors  within  the  county  of  Orange, 
etc.  (Ex  parte  Young,  154  Cal.  317,  22  L.  R.  A.  (N.  S.)  330,  97  Pac.  822) ; 
an  ordinance  limiting  the  liquor  business  to  certain  specified  districts 
within  a  municipality  (Grumbach  v.  Lelande,  154  Cal.  679,  98  Pac. 
1059) ;  an  ordinance  forbidding  the  interment  of  dead  bodies  within 
the  limits  of  the  city  and  county  of  San  Francisco  (Laurel  Hill  Ceme- 
tery V.  San  Francisco,  152  Cal.  464,  14  Ann.  Cas.  1080,  27  L.  R.  A. 
(N.  S.)  260,  93  Pac.  70) ;  a  law  forbidding  the  employment  of  children 
under  the  age  of  fourteen  years  at  any  regular  occupation  (In  re  Spen- 
cer, 149  Cal.  396,  117  Am.  St.  Rep.  137,  9  Ann.  Cas.  1105,  86  Pac.  896); 
an  ordinance  appointing  a  deputy  sealer  of  weights  and  measures  for 
the  city  of  Los  Angeles  (Milliken  v.  Meyers,  25  Cal.  App.  510,  144  Pac. 
321);  an  ordinance  authorizing  the  appointment  of  a  sealer  of  weights 
and  measures,  and  his  deputies,  and  fixing  their  compensation,  and 
since  the  amendment  of  October  10,  1911,  of  section  14  of  this  article 


449  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  11 

did  not  repeal  this  section,  the  counties  and  municipalities  would 
still  have  the  power  to  enact  such  an  ordinance  as  the  one  above 
under  this  section  (Scott  v.  Boyle,  164  Cal.  321,  128  Pac.  941) ;  an 
ordinance  regulating  and  licensing  the  business  of  selling  liquor  and 
giving  the  city  council  discretion  as  to  the  granting  of  liquor  licenses 
(Guzzi  V.  McAlister,  21  Cal.  App.  276,  131  Pac.  336);  an  ordinance  of 
a  town  forbidding  the  soliciting  or  taking  of  orders  for  the  delivery 
of  intoxicating  liquors,  it  not  conflicting  with  the  Wj'llie  Local  Option 
Law  (Matter  of  Application  of  Anixter,  22  Cal.  App.  117,  134  Pac. 
193);  an  ordinance  prohibiting  any  person  connected  with  a  laundry 
from  laundering  clothes  between  10  P.  M.  and  6  A.  M.  or  upon  any 
portion  of  Sunday  (Soon  Hing  v.  Crowley,  113  U.  S.  703,  28  L.  Ed. 
1145,  5  Sup.  Ct.  Rep.  730) ;  an  ordinance  granting  an  exclusive  privi- 
lege for  fifty  years  to  dispose  of  garbage  and  refuse  matter  by 
cremation  or  reduction,  and  requiring  the  delivery  of  all  such  ma- 
terial at  the  crematory  there  to  be  destroyed  at  the  expense  of  the 
person  conveying  the  same  (California  Reduction  Co.  v.  Sanitary 
Reduction  Works,  199  U.  S.  306,  50  L.  Ed.  204,  26  Sup.  Ct.  Rep.  100). 

Invalid  ordinances. — On  the  other  hand,  the  following  ordinances 
have  been  held  to  be  invalid  as  police  and  sanitary  measures:  A 
county  ordinance  forbidding  the  shipment  of  game  from  the  county 
in  which  it  has  been  lawfully  killed  (Ex  parte  Knapp,  127  Cal.  101, 
59  Pac.  315) ;  a  county  ordinance  making  it  unlawful  to  establish,  ex- 
tend or  enlarge  any  cemetery  within  the  county,  but  permitting 
burials  in  cemeteries  already  established  (County  of  Los  Angeles  v. 
Hollywood  Cem.  Assn.,  124  Cal.  344,  71  Am.  St.  Rep.  75,  57  Pac.  153); 
a  municipal  ordinance,  not  prohibiting  all  burials  within  the  city,  but 
merely  prohibiting  further  purchases  of  cemetery  lots,  and  allowing 
burials  in  lots  already  purchased  (Ex  parte  Bohen,  115  Cal.  372,  36 
L.  R.  A.  618,  47  Pac.  55) ;  an  ordinance  regulating  rates  of  transpor- 
tation of  a  street  railway  outside  of  the  city  limits  (South  Pasadena 
v.  Los  Angeles  Terminal  Ry.  Co.,  109  Cal.  315,  41  Pac.  1093);  a  county 
ordinance  providing  that  all  insane  asylums  shall  be  constructed  of 
either  brick,  iron  or  stone,  and  surrounded  by  a  brick  or  stone  M'all, 
that  they  shall  not  be  within  four  hundred  yards  of  any  dwelling  or 
school,  that  only  one  class  of  persons  shall  be  treated  in  the  same 
building,  and  that  male  and  female  patients  shall  not  be  cared  for  in 
the  same  building  (Ex  parte  Whit  well,  98  Cal.  73,  35  Am.  St.  Rep. 
152,  19  L.  R.  A.  727,  32  Pac.  870);  an  ordinance  prohibiting  the  carry- 
ing on  of  a  public  laundry  within  the  corporate  limits  of  the  town, 
except  in  certain  specified  blocks  thereof,  without  a  written  permit 
from  the  board  of  trustees,  and  the  written  consent  of  a  majorit}^  of 
the  real  property  owners  within  the  block  in  which  the  business  is  to 
be  carried  on,  and  also  of  the  four  blocks  immeHiately  surrounding 
the  same  (Ex  parte  Sing  Lee,  96  Cal.  354,  31  Am.  St.  Rep.  218,  24 
L.  R.  A.  195,  31  Pac.  245);  an  ordinance  requiring  all  occupants  of 
lands  within  ninety  days  to  exterminate  and  destroy  the  ground- 
squirrels  on  their  respective  lands  (Ex  parte  Hodges,  87  Cal.  162,  25 
Pac.  277);  an  ordinance  making  it  unlawful  for  any  contractor  per- 
forming work  for  the  city  to  employ  any  person  to  work  more  than 
eight  hours  a  day,  or  to  employ  Chinese  labor  (Ex  parte  Kuback,  85 
Cal.  274,  20  Am.  St.  Rep.  226,  9  L.  R.  A.  482,  24  Pac.  737);  an  ordi- 
Constitution — 29 


Art.  XI,  §  11  CONSTITUTION  OF  1879.  450 

nance  intended  to  discriminate  in  favor  of  sportsmen  and  against  all 
other  persons  in  respect  to  the  disposition  of  game  lawfully  killed 
(Ex  parte  Knapp,  127  Cal.  101,  59  Pac.  315) ;  an  ordinance  prohib- 
iting the  employment  of  females  in  dance-halls,  etc.  (Matter  of 
Magiiire,  57  Cal.  601,  40  Am.  St.  Rep.  125.  But  see  Ex  parte  Felchlin, 
96  Cal.  360,  31  Am.  St.  Rep.  223,  31  Pac.  224)  .  a  municipal  ordinance 
which  undertakes  to  absolutely  forbid  the  erection  or  maintenance 
of  any  billboard  for  advertising  purposes.  (Varney  &  Green  v. 
Williams,  155  Cal.  318,  132  Am.  St.  Rep.  88,  21  L.  R.  A.  (N.  S.) 
741,  100  Pac.  867) ;  an  ordinance  making  it  unlawful  to  maintain 
gasworks  within  certain  defined  limits,  where  the  limits  were  shifted  in 
a  sudden  and  unexplained  manner  just  after  the  gasworks  had  pur- 
chased property  within  the  new  limits  and  while  it  was  proceeding  to 
erect  a  plant  thereon  (Dobbins  v.  Los  Angeles,  195  U.  S.  223,  49  L.  Ed. 
169,  25  Sup.  Ct.  Rep.  18;  overruling  Dobbins  v.  Los  Angeles,  139 
Cal.  179,  16  Am.  St.  Rep.  95,  72  Pac.  970);  an  act  prohibiting  any 
person  from  selling  tickets  to  a  theater  or  other  place  of  amusement 
for  a  price  higher  than  that  originally  charged  by  the  management 
thereof.  (Ex  parte  Quarg,  149  Cal.  79,  117  Am.  St.  Rep.  115,  9  Ann. 
Cas.  747,  5  L.  R.  A.  (N.  S.)  183,  84  Pac.  766);  an  act  requiring  the 
durable  marking  of  packages  of  butter  containing  less  than  six 
pounds,  and  more  than  one-half  pound,  by  figures  or  letters  not  less 
than  one-fourth  of  an  inch  high,  so  as  to  advise  the  purchaser  or 
others  as  to  the  exact  weight  of  butter  contained  in  such  package. 
(Ex  parte  Dietrich,  149  Cal.  10-4,  5  L.  R.  A.  (N.  S.)  873,  84  Pac.  770.) 

License  regulations. — An  ordinance  requiring  a  license  tax  from  all 
peddlers  of  meat,  fish,  vegetables,  fruit,  game,  poultry,  etc.,  is  valid. 
(Ex  parte  Heylman,  92  Cal.  492,  28  Pac.  675.) 

An  ordinance  requiring  a  license  to  be  obtained  by  every  person 
who  at  a  fixed  place  of  business  sells  any  goods,  etc.,  is  authorized 
by  this  section.  (Ex  parte  Mount,  66  Cal.  448,  6  Pac.  78;  San  Luis 
Obispo  County  v.  Greenberg,  120  Cal.  300,  52  Pac.  797.) 

An  ordinance  imposing  upon  traveling  salesmen  a  license  tax  of 
fifty  dollars  per  quarter  is  valid,  although  a  less  amount  is  imposed 
upon  those  who  sell  at  a  fixed  place  of  business.  (Ex  parte  Haskell, 
112  Cal.  412,  32  L.  R.  A.  527,  44  Pac.  725.) 

An  ordinance  requiring  all  persons  engaged  in  the  business  of  rais- 
ing, grazing,  herding,  or  pasturing  sheep  in  the  county  to  pay  an 
annual  license  of  fifty  dollars  for  every  thousand  sheep  is  valid.  (Ex 
parte  Mirande,  73  Cal.  365,  14  Pac.  888.) 

A  governing  body  of  a  city  or  county  in  denying  a  liquor  license  is 
not  limited  to  the  terms  of  the  ordinance,  but  in  the  exercise  of  the 
police  power  may  refuse  it  upon  sufficient  grounds  addressed  to  the 
unfitness  of  the  applicant  or  the  unsuitableness  of  the  place  at  which 
the  license  is  to  be  exercised.  (Reed  v.  Collins,  5  Cal.  App.  494,  90 
Pac.  973.) 

An  ordinance  requiring  a  license  on  dogs  and  requiring  the  owner 
to  attach  to  the  collar  a  tag  as  evidence  of  ownership,  and  payment 
of  the  tax,  and  providing  for  the  destruction  of  dogs  bearing  no  collar 
as  required  is  valid.     (In  re  Ackerman,  6  Cal.  App.  5,  91  Pac.  429.) 

A  license  imposed  upon  dogs  is  an  exercise  of  the  police,  and  not 
of  the  taxing  power.     (In  re  Ackerman,  6  Cal.  App.  5,  91  Pac.  429.) 


451  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  11 

The  power  to  regulate  a  business  may  be  exercised  by  means  of  a 
license  fee,  provided  the  amount  is  not  more  than  is  reasonably  neces- 
sary for  the  regulation  of  the  business.  (Plumas  Co.  v.  Wheeler,  149 
Cal.  758,  87  Pae.  909.) 

A  city  has  no  power  to  impose  a  license  tax  upon  the  right  to  prac- 
tice law.     (Sonora  v.  Curtin,  137  Cal.  583,  70  Pac.  674.) 

An  ordinance  levying  a  license  tax  upon  all  sheep  which  are  pas- 
tured in  the  county,  except  sheep  listed  as  taxable  property  in  the 
county,  and  upon  which  taxes  are  paid,  is  not  a  valid  police  regula- 
tion.    (Lassen  Co.  v.  Cone,  72  Cal.  387,  14  Pac.  100.) 

A  municipal  ordinance  which,  under  the  guise  of  a  revenue  measure, 
attempts  to  put  an  end  to  th'e  issue  of  trading  stamps,  by  levying  an 
excessive  tax  upon  that  business,  however  small  their  monthly  sales, 
assuming  to  exact  from  them  a  tax  eight  times  that  required  of  mer- 
chants doing  the  largest  business,  is  unreasonable  and  void.  (Ex 
parte  McKenna,  126  Cal.  429,  58  Pac.  916.) 

An  ordinance  requiring  a  license  fee  of  fifty  dollars  a  month  for 
carrying  on  a  saloon,  where  liquors  are  sold  or  given  away  in  quan- 
tities less  than  a  gallon,  will  not  be  presumed  to  be  oppressive,  un- 
reasonable or  prohibitory  of  trade.  (In  re  Guerrero,  69  Cal.  88,  10 
Pac.  261.) 

A  county  may  impose  a  license  tax  upon  the  sale  of  spirituous 
liquors.     (Ex  parte  Wolters,  65  Cal.  269,  3  Pac.  894.) 

An  ordinance  making  it  a  misdemeanor  to  sell  liquors  without  a 
license  is  a  valid  police  regulation.     (In  re  Stuart,  61  Cal.  374.) 

An  ordinance  establishing  a  license  tax  of  twenty-five  dollars  a 
month  for  the  sale  of  spirituous  and  fermented  liquors  is  not  unrea- 
sonable, oppressive  or  in  restraint  of  trade.  (Ex  parte  Benninger,  64 
Cal    291,  30  Pac.  846.) 

A  county  ordinance  providing  a  smaller  license  tax  for  the  sale  of 
Bpirituous  liquors  at  wayside  inns  and  rural  watering  places  than 
when  sold  in  a  city  is  not  unlawful  as  unreasonable,  oppressive,  or  in 
restraint  of  trade.  (Amador  Co.  v.  Kennedy,  70  Cal.  458,  11  Pac. 
757.) 

The  same  is  true  of  an  ordinance  imposing  a  higher  tax  upon  such 
saloons.     (Ex  parte  Stephen,  114  Cal.  278,  46  Pac.  86.) 

An  ordinance  imposing  an  annual  tax  of  two  hundred  dollars  upon 
the  business  of  selling  spirituous  liquors  within  the  city  limits  is 
valid.     (Ex  parte  McNally,  73  Cal.  632,  15  Pac.  368.) 

An  ordinance  providing  that  a  liquor  license  can  only  be  obtained 
upon  petition  to  the  city  council  of  the  applicant  accompanied  by  a 
certificate  of  five  respectaljle  citizens  of  the  neighborhood  in  which 
the  business  is  to  be  conducted  as  to  his  character,  and  upon  a  deter- 
mination by  the  board  that  he  is  qualified  to  carry  on  the  business, 
is  valid.     (In  re  Bickerstafi",  70  Cal.  35,  11  Pac.  393.) 

An  ordinance  purporting  to  regulate  the  business  of  selling  liquors, 
but  in  fact  prohibiting  the  sale  thereof,  cannot  be  upheld.  (Merced 
Co.  V.  Fleming,  111  Cal.  46,  43  Pac.  392.) 

An  ordinance  imposing  a  license  tax  for  carrying  on  the  "business" 
or  "occupation"  of  retail  liquor  dealer  in  a  "retail  liquor  establish- 
ment," is  a  tax  upon  the  business  and  not  upon  the  articles  sold. 
(Los  Angeles  County  v.  Eikenberry,  131  Cal.  461,  63  Pac.  766.) 


Art.  XI,  §  12  CONSTITUTION  OF  1879.  452 

A  county  ordinance  imposing  a  liquor  license  of  thirteen  dollars  per 
month  is  reasonable.  (Los  Angeles  County  v.  Eikenberry,  131  Cal. 
461,  63  Pac.  766.) 

Laws  and  regulation  of  health  and  their  validity.     See  note,  47 

Am.  St.  Rep.  541. 
Power  to  establish  markets.     See  note,  43  Am.  Rep.  473. 
Power  to  establish  and  regulate  markets.     See  notes,  23  Am.  St. 
Rep.  581;   85  Am.  Dec.  286. 

Power  to  create  monopolies  in  removal  of  garbage  and  noxious 
substances.  See  notes,  Ann.  Cas.  1913D,  61;  97  Am.  St.  Rep. 
688. 

Power  to  make  and  enforce  regulations  respecting  street  railways 
for  the  protection  of  the  public.     See  note,  104  Am.  St.  Rep.  636. 

Regulation  of  billboards.  See  notes,  132  Am.  St.  Rep.  92;  Ann. 
Cas.  1913D,  958. 

Validity  of  legislation  establishing  building  line.  See  notes,  Ann. 
Cas.  1914B,  194;  19  Ann.  Cas.  188. 

Assessment  and  collection  of  taxes. 

Sec.  12,  The  legislature  shall  have  no  power  to  impose 
taxes  upon  counties,  cities,  towns,  or  other  public  or  munici- 
pal corporations,  or  upon  the  inhabitants  or  property 
thereof,  for  county,  city,  town,  or  other  municipal  purposes, 
but  may,  by  general  laws,  vest  in  the  corporate  authorities 
thereof  the  power  to  assess  and  collect  taxes  for  such 
purposes. 

TAXATION  FOR  MUNICIPAL  PURPOSES.— Under  this  section 
the  whole  subject  of  county  and  municipal  taxes  for  local  purposes  is 
relegated  to  the  corporate  authorities  thereof,  and  the  legislature  has 
no  power  to  impose  any  tax  whatever  within  those  territories  for  local 
purposes.  (San  Francisco  v.  Liverpool  etc.  Ins.  Co.,  74  Cal.  113,  5 
Am.  St.  Rep.  425,  15  Pac.  380.) 

The  legislature  cannot  directly  exercise  the  power  of  assessment 
within  an  incorporated  city,  but  may  empower  the  municipal  authori- 
ties to  do  so.     (People  v.  Lynch,  51  Cal.  15,  21  Am.  Rep.  677.) 

The  legislature  has  power  to  direct  and  control  the  affairs  and  prop- 
erty of  a  municipal  corporation  for  municipal  purposes,  and  may  for 
such  purposes  so  control  its  affairs  by  appropriate  legislation  as  ulti- 
mately to  compel  it,  out  of  the  funds  of  its  treasury,  or  by  taxation, 
to  pay  a  demand  which  in  good  conscience  it  ought  to  pay.  (Sinton 
v.  Ashbury,  41  Cal.  525.) 

The  legislature  may  authorize  the  authorities  of  a  city  to  purchase 
an  agricultural  park,  to  issue  bonds  in  payment  therefor,  and  to  levy 
a  tax  for  the  payment  of  the  same.  (Bank  of  Sonoma  Co.  v.  Fair- 
banks, 52  Cal.  196.) 

The  power  of  a  county  or  other  public  corporation  to  impose  taxes 
is  only  that  which  is  granted  by  the  legislature.  (Hughes  v.  Ewing, 
93  Cal.  414,  28  Pac.  1067.) 


453  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  12 

The  legislature  cannot  impose  a  tax  upon  the  property  or  inhabi- 
tants of  a  school  district,  without  leaving  any  discretion  in  regard 
thereto  to  the  local  authorities.  (McCabe  v.  Carpenter,  102  Cal.  469, 
36  Pac.  836.) 

A  local  board  cannot  be  authorized  to  levy  local  taxes  and  assess- 
ments for  a  general  public  purpose.     (People  v.  Parks,  58  Cal.  624.) 

An  ordinance  imposing  a  license  tax  and  distinguishing  between 
hotels  where  meals  are  cooked  and  served  by  a  proprietor  or  the  mem- 
bers of  his  family  and  those  where  meals  are  not  so  cooked  and  served 
is  valid.  (Ex  parte  Lemon,  143  Cal.  558,  65  L.  E.  A.  946,  77  Pac. 
455.) 

License  taxes  for  revenue  are  taxes  within  the  meaning  of  this  sec- 
tion.    (Ex  parte  Jackson,  143  Cal.  564,  77  Pac.  457.) 

The  act  of  1876,  authorizing  the  construction  of  a  bridge,  and  de- 
claring that  the  cost  should  be  assessed  upon  certain  specified  lands, 
and  providing  for  a  commission  to  apportion  the  cost,  was  held 
constitutional.  (Pacific  Bridge  Co.  v.  Kirkham,  64  Cal.  519,  2  Pac. 
409.) 

An  act  providing  for  the  completion  of  the  city  hall  in  San  Fran- 
cisco, and  providing  that  the  work  should  only  be  done  after  the 
board  of  supervisors  declare  that  they  deem  the  work  expedient,  is 
not  violative  of  this  section.  (People  v.  Bartlett,  67  Cal.  156,  7  Pac. 
417.) 

This  section  does  not  prevent  a  city  from  providing  in  a  freeholders' 
charter  for  taxation  for  municipal  purposes.  (Security  Sav.  Bank 
etc.  Co.  V.  Hinton,  97  Cal.  214,  32  Pac.  3.) 

The  words  "corporate  authorities  thereof"  are  to  be  construed  dis- 
tributively  as  referring  to  the  governing  body  of  each  of  the  several 
municipalities  and  quasi  municipalities  referred  to  in  the  section,  and 
as  importing  the  legislative  department  of  the  municipality  only. 
(Board  of  Education  v.  Board  of  Trustees,  129  Cal.  599,  62  Pac.  173^) 

The  provision  of  the  fee  bill  of  1895,  requiring  the  payment  of  one 
dollar  for  each  one  thousand  dollars,  in  excess  of  three  thousand  dol- 
lars, of  the  appraised  value  of  an  estate,  upon  the  filing  of  the  inven- 
tory, is  in  violation  of  this  section.  (Fatjo  v.  Pfister,  117  Cal.  83,  48 
Pac.  1012.) 

An  act  requiring  foreign  insurance  corporations  to  pay  to  the  county 
treasury  a  certain  proportion  of  premiums  received  by  them,  to  con- 
stitute a  firemen's  relief  fund,  to  be  under  the  control  of  the  fire 
commissioners,  is  in  violation  of  this  section.  (San  Francisco  v. 
Liverpool  etc.  Ins.  Co.,  74  Cal.  113,  5  Am.  St.  Rep.  425,  15  Pac.  380.) 

An  act  validating  a  void  assessment  is  contrary  to  the  provisions 
of  this  section.  (Brady  v.  King,  53  Cal.  44;  Taylor  v.  Palmer,  31  Cal. 
240;  People  v.  Lynch,  51  Cal.  15,  21  Am.  Rep.  677;  Schumaker  v. 
Toberman,  56  Cal.  508;  Fanning  v.  Schammel,  68  Cal.  428,  9  Pac.  427; 
Kelly  V.  Luning,  76  Cal.  309,  18  Pac.  335.) 

An  act  requiring  the  trustees  of  a  swamp-land  reclamation  district 
to  make  up  a  sworn  statement  of  the  cost  of  the  reclamation  work, 
"based  upon  the  books  and  vouchers  thereof,"  and  requiring  the 
amount  so  reported  to  be  assessed  upon  the  lands  of  the  district,  is 
violative  of  the  provisions  of  this  section.  (People  v.  Houston,  54 
Cal.  536.) 


Art.  XI,  §  12  CONSTITUTION  OF  1879.  454 

The  act  of  1891,  permitting  the  organization  and  creation  of  sani- 
tary districts,  is  not  in  violation  of  this  section,  since  such  districts 
do  not  necessarily  include  municipal  corporations.  (Woodward  v. 
Fruitvale  Sanitary   Dist.,   99   Cal.   554,   34  Pac.   239.) 

An  act  authorizing  the  county  superintendent  of  schools  to  furnish 
the  board  of  supervisors  an  estimate  of  a  tax,  and  making  it  the  duty 
of  the  board  to  proceed  to  fix  a  rate  which  will  realize  the  amount 
of  the  estimate,  is  void.  (McCabe  v.  Carpenter,  102  Cal.  469,  36  Pac. 
836.) 

This  section  does  not  invalidate  the  provisions  of  the  Political  Code 
making  the  city  of  Eureka  liable  for  the  expense  of  work  on  Hum- 
boldt bay  outside  of  the  city — that  provision  having  been  enacted 
prior  to  the  new  Constitution.  (Quigg  v.  Evans,  121  Cal.  546,  53  Pac. 
1093.) 

The  general  municipal  corporation  act  authorizing  the  boards  of 
trustees  of  cities  to  adopt  a  revenue  system  is  valid.  (Escondido  v. 
Escondido  Lumber  etc.  Co.,  8  Cal.  App.  435,  97  Pac.  197.) 

Section  39  of  the  Wright  Irrigation  Act,  providing  that  if  the  trus- 
tees of  the  district  fail  to  levy  a  tax  to  pay  the  bonds  of  the  district, 
the  board  of  supervisors  shall  do  so,  is  not  unconstitutional.  (Nevada 
Nat.  Bank  v.  Board  of  Supervisors,  5  Cal.  App.  638,  91  Pac.  122.) 

The  question  of  sanitation  is  not  a  "local"  or  "municipal"  affair 
within  the  inhibition  of  this  section.  (Pixley  v.  Saunders,  168  Cal. 
152,  141  Pac.  815.) 

License  taxes. — A  license  tax  graduated  according  to  the  amount  of 
the  monthly  sales  of  the  merchant  is  valid,  since  it  applies  uniformly 
to  all  persons  in  the  same  category.  (Sacramento  v.  Crocker,  16  Cal. 
119.) 

A  law  imposing  upon  a  person  residing  in  a  given  section  of  the 
state  a  license  as  a  merchant  without  reference  to  his  occupation 
would  be  void.     (Ex  parte  Ah  Pong,  19  Cal.  106.) 

Under  this  section  a  municipality  may  impose  a  license  tax  for  the 
purpose  of  revenue.     (In  re  Guerrero,  69  Cal.  88,  10  Pac.  261.) 

This  section  authorizes  the  imposition  by  a  county  of  a  license  tax 
on  the  sale  of  spirituous  liquors  and  the  appointment  of  a  suitable 
person  to  collect  the  same.  (In  re  Lawrence,  69  Cal.  608,  11  Pac. 
217.) 

A  license  imposed  by  the  legislature  for  carrying  on  the  business 
of  selling  goods,  etc.,  at  a  fixed  place  of  business,  is  a  "tax"  within 
the  meaning  of  this  section,  and,  being  for  county  purposes,  is  in  vio- 
lation of  this  section.      (People  v.  Martin,  60  Cal.  153.) 

A  county  ordinance  imposing  a  license  tax  upon  every  person  en- 
gaged in  the  business  of  raising,  grazing,  herding,  or  pasturing  sheep, 
etc.,  within  the  county,  is  authorized  by  this  section.  (El  Dorado 
County  V.  Meiss,  100  Cal.  268,  34  Pac.  716.) 

The  fact  that  such  ordinance  applies  to  nonresidents  as  well  as  resi- 
dents, instead  of  being  an  objection  to  the  validity  of  the  tax,  is 
essential  to  sustain  its  validity.  (El  Dorado  County  v.  Meiss,  100 
Cal.  268,  34  Pac.  716.) 

A  city  ordinance  regulating  liquor  licenses,  and  a  section  of  the  city 
charter  giving  the  city  a  remedy  by  civil  action  in  any  case  where  a 
person,  required  by  any  ordinance  to  take  out  a  license  and  to  pay 


455  CITIES,  COUNTIES  AND  TOWNS.  Art.  XI,  §  13 

therefor,  shall  fail  to  do  so,  are  not  in  conflict  with  this  section. 
(Sacramento  v.  Dillman,  102  Cal.  107,  36  Pac.  385.) 

When  the  right  to  collect  a  license  tax  by  suit  is  limited  to  in- 
stances in  which  the  persons  commenced  some  "business,"  no  action 
can  be  maintained  to  recover  a  license  tax  for  the  sale  of  intoxicat- 
ing liquors,  since  such  sale  is  not  a  business.  (Merced  Co.  v.  Helm, 
102  Cal.  159,  36  Pac.  399.) 

But  an  ordinance  requiring  "every  person  who  in  any  saloon,  etc., 
sells  or  gives  away"  any  intoxicating  liquor  to  pay  a  license  tax, 
should  be  construed  as  a  tax  upon  the  business.  (Ex  parte  Mansfield, 
106  Cal.  400,  39  Pac.  775.  Merced  Co.  v.  Helm,  102  Cal.  159,  36  Pac. 
399,  distinguished.  See,  also,  Ex  parte  Seube,  115  Cal.  629,  47  Pac. 
596.) 

Where  a  county  passed  an  ordinance  requiring  a  high  license  tax 
for  the  sale  of  intoxicating  liquors  but  fixing  no  penalty  for  engaging 
in  the  business,  the  ordinance  is  not  to  be  regarded  as  the  exercise  of 
the  police  power,  but  as  a  revenue  measure.  (Merced  Co.  v.  Helm,  102 
Cal.  159,  36  Pac.  399.) 

A  county  ordinance  imposing  a  license  for  revenue  on  the  business 
of  liquor  dealer  is  valid,  and  such  license  may  be  collected  within 
cities.  (Ex  parte  Mansfield,  106  Cal.  400,  39  Pac.  775;  Ventura  Co. 
V.  Clay,  112  Cal.  65,  44  Pac.  488.) 

This  section  does  not  prohibit  the  legislature  from  enacting  a  law 
preventing  counties,  cities,  etc.,  from  levying  and  collecting  a  license 
tax  for  revenue.     (Ex  parte  Pfirrmann,  134  Cal.  143,  66  Pac.  205.) 

Powers  not  to  be  delegated  to  special  commission,  etc. 

Sec.  13.  The  legislature  shall  not  delegate  to  any  special 
commission,  private  corporation,  company,  association  or 
individual  any  power  to  make,  control,  appropriate,  super- 
vise or  in  any  way  interfere  with  any  county,  city,  town 
or  municipal  improvement,  money,  property,  or  effects, 
whether  held  in  trust  or  otherwise,  or  to  levy  taxes  or  as- 
sessments or  perform  any  municipal  function  whatever, 
except  that  the  legislature  shall  have  power  to  provide  for 
the  supervision,  regulation  and  conduct,  in  such  manner  as 
it  may  determine,  of  the  affairs  of  irrigation  districts,  recla- 
mation districts  or  drainage  districts,  organized  or  existing 
under  any  law  of  this  state.  (Amendment  adopted  Novem- 
ber 3,  1914.) 

[OKIGINAL  SECTION.] 
Sec.  13.  The  legislature  shall  not  delegate  to  any  special  com- 
mission, private  corporation,  company,  association,  or  individual, 
any  power  to  make,  control,  appropriate,  supervise,  or  in  any  way 
interfere  with,  any  county,  city,  town,  or  municipal  improvement, 
money,  property,  or  effects,  whether  held  in  trust  or  otherwise,  or 
to  levy  taxes  or  assessments,  or  perform  any  municipal  functions 
whatever. 


Art.  XI,  §  13  CONSTITUTION  OP  1879.  456 

MUNICIPAL  FUNDS. — This  section  is  prospective,  and  applies  only 
to  legislation  enacted  after  its  adoption.  (Board  of  Commissioners  v. 
Board  of  Trustees,  71  Cal.  310,  12  Pac.  221.) 

The  legislature  may  direct  a  municipality  to  audit  and  allow  claims 
against  the  municipality.  (People  v.  Board  of  Supervisors,  11  Cal. 
206.) 

This  section  equally  forbids  the  legislature  from  delegating  to  a 
municipal  corporation  power  to  do  what  the  legislature  is  itself  for- 
bidden from  doing  by  this  section.  (Yarnell  v.  Los  Angeles,  87  Cal. 
603,  25  Pac.  767.) 

The  legislature  has  no  control  over  funds  of  a  municipality  except 
to  api^ropriate  them  for  municipal  purposes  or  in  satisfaction  of  some 
valid  claim  against  the  municipality.  (Conlin  v.  Board  of  Super- 
visors, 114  Cal.  404,  33  L.  E.  A.  752,  46  Pac.  279.) 

An  act  creating  a  police  life  and  health  insurance  fund  does  not 
create  a  "special  commission"  within  the  meaning  of  this  section. 
(Pennie  v.  Eeis,  80  Cal.  266,  22  Pac.  176.) 

Where  an  act  leaves  it  discretionary  with  the  local  legislative  body 
whether  or  not  the  improvement  shall  be  made,  but  provides  that, 
if  done,  it  shall  be  done  by  a  commission  created  by  the  act,  it  is 
not  in  violation  of  this  section.  (Lent  v.  Tillson,  72  Cal.  404,  14  Pac. 
71.) 

An  act  providing  for  the  commitment  of  minor  criminals  to  non- 
sectarian  charitable  corporations,  the  expense  of  maintenance  to  be 
paid  by  the  county,  is  not  in  violation  of  this  section.  (Boys'  and 
Girls'  Aid  Soc.  v.  Reis,  71  Cal.  627,  12  Pac.  796.) 

Where  commissioners  to  open  streets  are  simply  made  the  agents  of 
the  municipality,  and  act  under  the  direction  of  the  city  authorities, 
this  section  is  not  violated.  (Davies  v.  Los  Angeles,  86  Cal.  37,  24 
Pac.  771.) 

The  act  of  1891,  permitting  the  organization  and  creation  of  sani- 
tary districts,  is  not  in  conflict  with  this  section,  since  such  districts 
do  not  necessarily  include  municipal  corporations.  (Woodward  v. 
Fruitvale  Sanitary  Dist.,  99  Cal.  554,  34  Pac.  239.) 

Legislative  power  is  not  delegated  under  the  Wright  Act,  by  enact- 
ing conditions  upon  the  performance  of  which  a  public  corporation, 
namely,  an  irrigation  district,  is  organized  within  boundaries  fixed  by 
a  board  of  supervisors  after  a  hearing  and  a  vote  of  electors.  (Fall- 
brook  Irr.  Dist.  v.  Bradley,  164  U.  S.  112,  41  L.  Ed.  369,  17  Sup.  Ct. 
Rep.  56.) 

An  ordinance  providing  that  municipal  bonds  shall  be  payable  out- 
side of  the  state,  at  a  bank  in  New  York,  is  in  violation  of  this  sec- 
tion.    (Los  Angeles  v.  Teed,  112  Cal.  319,  44  Pac.  580.) 

But  a  contract  by  the  board  of  supervisors  for  the  sale  of  bonds  at 
par,  to  be  made  payable  at  a  bank  in  another  county,  does  not  consti- 
tute such  bank  a  custodian  of  county  funds,  or  the  agent  of  either 
party.     (Mack  v.  Jastro,  126  Cal.  130,  58  Pac.  372.) 

A  statute  conferring  upon  the  supervisors  power  to  license  individ- 
uals to  take  tolls  on  a  public  road,  as  compensation  for  keeping  the 
road  in  repair,  is  not  in  violation  of  this  provision.  (Blood  v.  Mc- 
Carty,  112  Cal.  561,  44  Pac.  1025.) 

An  act  allowing  county  officers  to  appoint  deputies,  whose  salaries 
are  fixed  by  the  act  and  made  payable  out  of  the  county  treasury,  is 


457  CITIES,  COUNTIES  AND  TOWNS.        Art.  XI,  §  IS^/^ 

not  in  violation  of  this  section.  (Tulare  Co.  v.  May,  118  Cal.  303,  50 
Pac.  427.) 

An  act  permitting  the  county  clerk  to  make  the  compensation  of  the 
number  of  deputies  he  may  see  fit  to  appoint  a  charge  upon  the 
county  treasury  violates  this  section.  (San  Francisco  v.  Broderick, 
125  Cal.  188,  57  Pac.  887.) 

The  authority  given  by  the  Vrooman  Act  to  the  contractor  to  col- 
lect the  assessment  is  not  a  delegation  of  a  municipal  function. 
(Banaz  v.  Smith,  133  Cal.  102,  65  Pac.  309.) 

To  convey  to  a  mortgagee  the  statutory  powers  of  the  board  of 
trustees  of  an  irrigation  district  is  in  violation  of  this  section.  (Mer- 
chants' Nat.  Bank  v.  Escondido  Irr.  Dist.,  144  Cal.  329,  77  Pac.  937.) 

This  provision  applies  to  public  or  municipal  corporations,  such  as 
irrigation  districts,  as  well  as  to  ordinary  municipalities  or  cities. 
(Merchants'  Nat.  Bank  v.  Escondido  Irr.  Dist.,  144  Cal.  329,  77  Pac. 
937.) 

The  fixing  of  the  boundaries  of  the  territory  to  be  annexed  to  a 
city  or  town  is  not  a  municipal  function.  (People  v.  Ontario,  148 
Cal.  625,  84  Pac.  205.) 

The  initiative  and  referendum  is  not  in  violation  of  this  section, 
since  the  aggregate  body  of  voters  cannot  be  held  to  be  a  special 
commission.  (In  re  Pfahler,  150  Cal.  71,  11  Ann.  Cas.  911,  11  L.  R.  A. 
(N.  S.)  1092,  88  Pac.  270.) 

The  object  of  this  section  was  to  emancipate  municipal  corporations 
from  the  authority  and  control  formerly  exercised  over  them  b_y  the 
legislature.  (In  re  Pfahler,  150  Cal.  71,  11  Ann.  Cas.  911,  11  L.  R.  A, 
(N.  S.)  1092,  88  Pac.  270.) 

The  commission  provided  for  in  the  act  of  1907  to  change  the 
boundary  between  Fresno  and  Kings  counties  is  not  within  the  pro- 
hibition of  this  section.  (Wheeler  v.  Herbert,  152  Cal.  224,  92  Pac. 
353.) 

The  question  of  sanitation  is  not  a  "local"  or  "municipal"  affair 
within  the  inhibition  of  this  section.  (Pixley  v.  Saunders,  168  Cal. 
152,  141  Pac.  815.) 

Payment  of  bonds. 

Sec.  131/4.  Any  county,  city  and  county,  city,  town, 
municipality,  irrigation  district,  or  other  public  corporation, 
issuing  bonds  under  the  laws  of  the  state,  is  hereby  author- 
ized and  empowered  to  make  said  bonds  and  the  interest 
thereon  payable  at  any  place  or  places  within  or  outside  of 
the  United  States,  and  in  any  money,  domestic  or  foreign, 
designated  in  said  bonds.  (Amendment  adopted  November 
3,  1914.) 

[ORIGINAL  SECTION.] 
Sec.  13'/4.     Nothing  in  this  Constitution  contained  shall  be  con- 
strued  as   prohibiting   the  state   or   any   county,   city   and   county, 
city,  town,  municipality,  or  other  public  corporation,  issuing  bonds 


Art.  XI,  §§  14-16       CONSTITUTION  OP  1879.  458 

under  the  laws  of  the  state,  to  make  said  bonds  payable  at  any 
place  within  the  United  States  designated  in  said  bonds.  (New 
section  added  by  amendment  adopted  November  6,  1906.) 

Inspection  officers,  appointment  of. 

Sec.  14.  The  legislature  may  by  general  and  uniform 
laws  provide  for  the  inspection,  measurement  and  gradua- 
tion of  merchandise,  manufactured  articles  and  commodi- 
ties, and  may  provide  for  the  appointment  of  such  officers 
as  may  be  necessary  for  such  inspection,  measurement  and 
graduation.     (Amendment  approved  October  10,  1911.) 

[ORIGINAL  SECTION.] 

Sec.  14.  No  state  office  shall  be  continued  or  created  in  any 
county,  city,  town  or  other  municipality,  for  the  inspection,  meas- 
urement or  graduation  of  any  merchandise,  manufacture,  or  com- 
modity; but  such  county,  city,  town,  or  municipality  may,  when 
authorized  by  general  law,  appoint  such  officers, 

WEIGHTS  AND  MEASURES.— Prior  to  its  amendment  on  October 
10,  1911,  this  section  empowered  the  legislature  to  enact  the  statute 
of  March  18,  1911,  authorizing  the  respective  counties  and  municipali- 
ties of  the  state  to  appoint  sealers  of  weights  and  measures.  Under 
this  section  as  amended  the  legislature  may  provide  either  a  state 
system  for  such  purpose,  administered  by  state  officers,  or  a  local 
system  administered  by  the  respective  counties,  cities  or  cities  and 
counties,  through  officers  which  they  may  appoint  under  the  authority 
of  the  general  statute.  There  being  no  statute  providing  such  state 
system,  the  above-mentioned  statute  remains  fully  in  force,  and  until 
the  repeal  of  this  act  or  the  establishment  of  a  state  system,  the  pro- 
visions of  the  act  prevail.  (Scott  v.  Boyle,  164  Cal.  321,  128  Pac. 
941.) 

This  section  abolished  the  office  of  inspector  of  gas-meters  created 
by  section  577  et  seq.  of  the  Political  Code.  (Condict  v.  Police  Court, 
59  Cal.  278.) 

Validity   of   legislation   for  prevention   of  fraud  in  weights  and 
measures.     See  note,  Ann.  Cas.  1912C,  251. 

Private  property  not  liable  for  corporate  debt  of  munici- 
pality. 
Sec.  15.     Private  property  shall  not  be  taken  or  sold  for 
the  payment  of  the  corporate  debt  of  any  political  or  muni- 
cipal corporation. 

Moneys,  etc.,  to  be  deposited  with  treasurer. 

Sec.  16.  All  moneys,  assessments,  and  taxes  belonging 
to  or  collected  for  the  use  of  any  county,  city,  town,  or  other 


459  CITIEiS,  COUNTIES  AND  TOWNS.        Art.  XI,  §  161/2 

public  or  municipal  corporation,  coming  into  the  hands  of 
any  officer  thereof,  shall  immediately  be  deposited  with  the 
treasurer,  or  other  legal  depositary,  to  the  credit  of  such 
city,  town,  or  other  corporation  respectively,  for  the  benefit 
of  the  funds  to  which  they  respectively  belong. 

MUNICIPAL  FUNDS.— This  section  only  relates  to  those  officers 
who  rightfully  or  officially  receive  money  for  the  county.  (San  Luis 
Obispo  County  v.  Farnum,  108  Cal.  562,  41  Pac.  445.) 

The  words  "legal  depositary"  do  not  include  a  private  individual  or 
corporation.     (Yarnell  v.  Los  Angeles,  87  Cal.  603,  25  Pac.  767.) 

An  ordinance  providing  that  municipal  bonds  shall  be  payable  out- 
side of  the  state,  at  a  bank  in  New  York,  is  in  violation  of  this  pro- 
vision.    (Los  Angeles  v.  Teed,  112  Cal.  319,  44  Pac.  580.) 

Funds  of  a  school  district  are  not  subject  to  the  control  of  the 
county.  (Pacific  Mut.  Life  Ins.  Co.  v.  San  Diego  County,  112  Cal. 
314,  41  Pac.  423,  44  Pac.  571.) 

A  contract  by  a  municipal  corporation  making  the  bank  which  will 
pay  the  highest  rate  of  interest  a  depository  of  the  public  moneys  of 
the  city  is  in  violation  of  this  section.  (Yarnell  v.  Los  Angeles,  87 
Cal.  603,  25  Pac.  767.) 

It  is  the  duty  of  the  tax  collector  to  pay  all  taxes  collected  by  him 
into  the  county  treasury,  whether  or  not  the  tax  is  valid,  (Craig  v. 
Boone,  146  Cal.  718,  81  Pac.  22.) 

Deposit  of  public  moneys. 

Sec.  161/2.  All  moneys  belonging  to  the  state,  or  to  any 
county  or  municipality  within  this  state,  may  be  deposited 
in  any  national  bank  or  banks  within  this  state,  or  in  any 
bank  or  banks  organized  under  the  laws  of  this  state,  in 
such  manner  and  under  such  conditions  as  may  be  provided 
by  law ;  provided,  that  such  bank  or  banks  in  which  such 
moneys  are  deposited  shall  furnish  as  security  for  such  de- 
posits, bonds  of  the  United  States,  or  of  this  state  or  of  any 
county,  municipality  or  school  district  within  this  state,  or 
of  any  irrigation  district  within  this  state,  to  be  approved 
by  the  officer  or  officers  designated  by  law,  to  an  amount  in 
value  of  at  least  ten  per  cent  in  excess  of  the  amount  of 
such  deposit ;  and  provided,  that  such  bank  or  banks  shall 
pay  a  reasonable  rate  of  interest,  not  less  than  tAvo  per  cent 
per  annum  on  the  daily  balances  therein  deposited ;  and  pro- 
vided, that  no  deposit  shall  at  any  one  time  exceed  fifty  per 
cent  of  the  paid-up  capital  stock  of  such  depository  bank  or 
banks;  and  provided,  further,  that  no  officer  shall  deposit 


Art.  XI,  §§  17, 18      CONSTITUTION  OF  1879.  460 

at  one  time  more  than  twenty  per  cent  of  such  public 
moneys  available  for  deposit  in  any  bank  while  there  are 
other  qualified  banks  requesting  such  deposits.  (Amend- 
ment adopted  November  5,  1912.) 

[OEIGINAL  SECTION.] 
Sec.  16%.  All  moneys  belonging  to  the  state,  or  to  any  county 
or  municipality  within  this  state,  may  be  deposited  in  any  national 
bank  or  banks  within  this  state,  or  in  any  bank  or  banks  organ- 
ized under  the  laws  of  this  state,  in  such  manner  and  under  such 
conditions  as  may  be  provided  by  law;  provided,  that  such  bank 
or  banks  in  which  such  moneys  are  deposited  shall  furnish  as  secu- 
rity for  such  deposits,  bonds  of  the  United  States,  or  of  this  state 
or  of  any  county,  municipality  or  school  district  within  this  state, 
to  be  approved  by  the  officer  or  officers  designated  by  law,  to  an 
amount  in  value  of  at  least  ten  per  cent  in  excess  of  the  amount 
of  such  deposit;  and  provided,  that  such  bank  or  banks  shall  pay 
a  reasonable  rate  of  interest,  not  less  than  two  per  cent  per  annum 
on  the  daily  balances  therein  deposited,  and  provided,  that  no 
deposit  shall  at  any  one  time  exceed  fifty  per  cent  of  the  paid-up 
capital  stock  of  such  depositary  bank  or  banks,  and  provided  fur- 
ther, that  no  officer  shall  deposit  at  one  time  more  than  twenty 
per  cent  of  such  public  moneys  available  for  deposit  in  any  bank 
while  there  are  other  qualified  banks  requesting  such  deposits. 
(New  section  added  by  amendment  adopted  November  6,  1906.) 

DEPOSITS  IN  BANKS.— Section  16 V2  of  article  XI  of  the  Consti- 
tution, added  by  amendment  November  6,  1906,  providing  for  the 
deposit  in  banks  of  state,  county  and  municipal  funds,  "in  such  man- 
ner and  under  such  conditions  as  may  be  provided  by  law,"  does  not 
authorize  the  legislature  to  enact  a  law  authorizing  the  officers  of  a 
municipality  governed  by  a  freeholders'  charter  to  make  such  depos- 
its of  municipal  moneys,  contrary  to  the  express  provision  of  its  char- 
ter in  that  regard.     (Kothschild  v.  Bantel,  152  Cal.  5,  91  Pac.  803.) 

Making-  profit  out  of  public  funds  a  felony. 

Sec.  17.  The  making  of  profit  out  of  county,  city,  town, 
or  other  public  money,  or  using  the  same  for  any  purpose 
not  authorized  by  law,  by  any  officer  having  the  possession 
or  control  thereof,  shall  be  a  felony,  and  shall  be  prosecuted 
and  punished  as  prescribed  by  law. 

Restrictions  on  power  to  incur  indebtedness. 

Sec.  18.  No  county,  city,  town,  township,  board  of  edu- 
cation, or  school  district,  shall  incur  any  indebtedness  or 
liability  in  any  manner  or  for  any  purpose  exceeding  in  any 
year  the  income  and  revenue  provided  for  such  year^  with- 


461  CITIES,    COUNTIES   AND    TOWNS.         Art.  XI,  §  18 

out  the  assent  of  two-thirds  of  the  qualified  electors  thereof, 
voting  at  an  election  to  be  held  for  that  purpose,  nor  unless 
before  or  at  the  time  of  incurring  such  indebtedness  provi- 
sion shall  be  made  for  the  collection  of  an  annual  tax  suffi- 
cient to  pay  the  interest  on  such  indebtedness  as  it  falls  due, 
and  also  provision  to  constitute  a  sinking  fund  for  the  pay- 
ment of  the  principal  thereof  on  or  before  maturity,  which 
shall  not  exceed  forty  years  from  the  time  of  contracting 
the  same ;  provided,  however,  that  the  city  and  county  of 
San  Francisco  may  at  any  time  pay  the  unpaid  claims,  with 
interest  thereon  at  the  rate  of  five  per  cent  per  annum,  for 
materials  furnished  to  and  work  done  for  said  city  and 
county  during  the  forty-first,  forty-second,  forty-third, 
forty-fourth,  and  fiftieth  fiscal  years,  and  for  unpaid  teach- 
ers' salaries  for  the  fiftieth  fiscal  year,  out  of  the  income  and 
revenue  of  any  succeeding  year  or  years,  the  amount  to  be 
paid  in  full  of  said  claims  not  to  exceed  in  the  aggregate  the 
sum  of  five  hundred  thousand  dollars,  and  that  no  statute 
of  limitations  shall  apply  in  any  manner  to  these  claims; 
and  provided,  further,  that  the  city  of  Vallejo,  of  Solano 
county,  may  pay  its  existing  indebtedness,  incurred  in  the 
construction  of  its  waterworks,  whenever  two-thirds  of  the 
electors  thereof,  voting  at  an  election  held  for  that  purpose, 
shall  so  decide,  and  that  no  statute  of  limitations  shall  apply 
in  any  manner.  Any  indebtedness  or  liability  incurred  con- 
trary to  this  provision,  with  the  exceptions  hereinbefore 
recited,  shall  be  void.  The  city  and  county  of  San  Fran- 
cisco, the  city  of  San  Jose,  and  the  town  of  Santa  Clara  may 
make  provision  for  a  sinking  fund,  to  pay  the  principal  of 
any  indebtedness  incurred,  or  to  be  hereafter  incurred  by  it, 
to  commence  at  a  time  after  the  incurring  of  such  indebted- 
ness of  no  more  than  a  period  of  one-fourth  of  the  time  of 
maturity  of  such  indebtedness,  Avhich  shall  not  exceed  sev- 
enty-five years  from  the  time  of  contracting  the  same.  Any 
indebtedness  incurred  contrary  to  any  provision  of  this  sec- 
tion shall  be  void;  and  provided,  further,  that  the  county  of 
Alameda  may,  upon  the  assent  of  two-thirds  of  the  qualified 
electors  thereof  voting  at  an  election  to  be  held  for  that  pur- 
pose, incur  a  bonded  indebtedness   of  not  to   exceed  one 


Art.  XI,  §  18 


CONSTITUTION    OF   1879. 


462 


million  dollars,  and  the  legislative  .authority  of  said  county 
of  Alameda  shall  issue  bonds  therefor  and  grant  and  turn 
over  to  the  Panama-Pacific  International  Exposition  com- 
pany, a  corporation  organized  under  the  laws  of  the  state 
of  California,  March  22,  1910,  the  proceeds  of  said  bonds 
for  stock  in  said  company  or  under  such  other  terms  and 
conditions  as  said  legislative  authority  may  determine,  the 
same  to  be  used  and  disbursed  by  said  exposition  company 
for  the  purposes  of  an  exposition  to  be  held  in  the  city  and 
county  of  San  Francisco  to  celebrate  the  completion  of  the 
Panama  canal ;  said  bonds,  so  issued,  to  be  of  such  form  and 
to  be  redeemable,  registered  and  converted  in  such  manner 
and  amounts,  and  at  such  times  not  later  than  forty  years 
from  the  date  of  their  issue  as  the  legislative  authority  of 
said  county  of  Alameda  shall  determine ;  the  interest  on  said 
bonds  not  to  exceed  five  per  centum  per  annum,  and  said 
bonds  to  be  exempt  from  all  taxes  for  state,  county  and 
municipal  purposes,  and  to  be  sold  for  not  less  than  par  at 
such  times  and  places,  and  in  such  manner,  as  shall  be  de- 
termined by  said  legislative  authority ;  the  proceeds  of  said 
bonds,  when  sold,  to  be  payable  immediately  upon  such 
terms  or  conditions  as  said  legislative  body  may  determine, 
to  the  treasurer  of  said  Panama-Pacific  International  Expo- 
sition company,  upon  demands  of  said  treasurer  of  said 
exposition  company,  without  the  necessity  of  the  approval 
of  such  demands  by  other  authority,  than  said  legislative 
authority  of  Alameda  county,  the  same  to  be  used  and  dis- 
bursed by  said  Panama-Pacific  International  Exposition 
company  for  the  purposes  of  such  exposition,  under  the  di- 
rection and  control  of  said  exposition  company ;  and,  the 
legislative  authority  of  said  county  of  Alameda  is  hereby 
empowered  and  directed  to  levy  a  special  tax  on  all  taxable 
property  in  said  county  each  year  after  the  issue  of  said 
bonds  to  raise  an  amount  to  pay  the  interest  on  said  bonds 
as  the  same  become  due,  and  to  create  a  sinking  fund  to  pay 
the  principal  thereof  when  the  same  shall  become  due. 
(Amendment  adopted  November  3,  1914.) 


463  .  CITIES,    COUNTIES   AND   TOWNS.         Art.  XI,  §  18 

[AMENDMENT  OF  1900.] 

Sec.  18.  No  county,  city,  town,  township,  board  of  education, 
or  school  districts,  shall  incur  any  indebtedness  or  liability  in  any 
manner  or  for  any  purpose  exceeding  in  any  year  the  income  and 
revenue  provided  for  such  year,  without  the  assent  of  two-thirds 
of  the  qualified  electors  thereof,  voting  at  an  election  to  be  held 
for  that  purpose,  nor  unless  before  or  at  the  time  of  incurring  such 
indebtedness  provision  shall  be  made  for  the  collection  of  an 
annual  tax  sufficient  to  pay  the  interest  on  such  indebtedness  as 
it  falls  due,  and  also  provision  to  constitute  a  sinking  fund  for 
the  payment  of  the  principal  thereof  on  or  before  maturity,  which 
shall  not  exceed  forty  years  from  the  time  of  contracting  the 
same;  provided,  however,  that  the  city  and  county  of  San  Fran- 
cisco may  at  any  time  pay  the  unpaid  claims,  with  interest  thereon 
at  the  rate  of  five  per  cent  per  annum,  for  materials  furnished  to 
and  work  done  for  said  city  and  county  during  the  forty-first, 
forty-second,  forty-third,  forty-fourth,  and  fiftieth  fiscal  years,  and 
for  unpaid  teachers'  salaries  for  the  fiftieth  fiscal  year,  out  of  the 
income  and  revenue  of  any  succeeding  year  or  years,  the  amount 
to  be  paid  in  full  of  said  claims  not  to  exceed  in  the  aggregate 
the  sum  of  five  hundred  thousand  dollars,  and  that  no  statute  of 
limitations  shall  apply  in  any  manner  to  these  claims;  and  pro- 
vided further,  that  the  city  of  Vallejo,  of  Solano  county,  may  pay 
its  existing  indebtedness,  incurred  in  the  construction  of  its  water- 
works, whenever  two-thirds  of  the  electors  thereof,  voting  at  an 
election  held  for  that  purpose,  shall  so  decide,  and  that  no  statute 
of  limitations  shall  apply  in  any  manner.  Any  indebtedness  or 
liability  incurred  contrary  to  this  provision,  with  the  exceptions 
hereinbefore  recited,  shall  be  void.  (Amendment  adopted  Novem- 
ber 6,  1900.) 

By  amendment  adopted  November  6,  1906,  the  following  was 
added  at  the  end  of  this  section: 

The  city  and  county  of  San  Francisco,  the  city  of  San  Jose  and 
the  town  of  Santa  Clara  may  make  provision  for  a  sinking  fund, 
to  pay  the  principal  of  any  indebtedness  incurred,  or  to  be  here- 
after incurred  by  it,  to  commence  at  a  time  after  the  incurring 
of  such  indebtedness  of  no  more  than  a  period  of  one-fourth  of 
the  time  of  maturity  of  such  indebtedness,  which  shall  not  ex- 
ceed seventy-five  years  from  the  time  of  contracting  the  same. 
Any  indebtedness  incurred  contrary  to  any  provision  of  this  sec- 
tion shall  be  void. 

[AMENDMENT  OF  1892.] 
Sec.  18.  No  county,  city,  town,  township,  board  of  education, 
or  school  district,  shall  incur  any  indebtedness  or  liability,  in  any 
manner,  or  for  any  purpose,  exceeding  in  any  year  the  income  and 
revenue  provided  for  it  for  such  year,  without  the  assent  of  two- 
thirds  of  the  qualified  electors  thereof  voting  at  an  election  to  be 
held  for  that  purpose,  nor  unless,  before  or  at  the  time  of  incurring 
such  indebtedness,  provision  shall  be  made  for  the  collection  of  an 
annual  tax  suflieieut  to  pay  the  interest  on  such  indebtedness  as  it 
falls  due,  and  also  provision  to  constitute  a  sinking  fund  for  the 


Art.  XI,  §  18  CONSTITUTION  OF  1879.        ■  464 

payment  of  the  principal  thereof  on  or  before  maturity,  which 
shall  not  exceed  forty  years  from  the  time  of  contracting  the 
same.  Any  indebtedness  or  liability  incurred  contrary  to  this 
provision  shall  be  void.  (Ratification  declared  December  30, 
1892.) 

[ORIGINAL  SECTION.] 
Sec.  18.  No  county,  city,  town,  township,  board  of  education, 
or  school  district,  shall  incur  any  indebtedness  or  liability  in  any 
manner  or  for  any  purpose,  exceeding  in  any  year  the  income  and 
revenue  provided  for  it  for  such  year,  without  the  assent  of  two- 
thirds  of  the  qualified  electors  thereof  voting  at  an  election  to  be 
held  for  that  purpose,  nor  unless,  before  or  at  the  time  of  incurring 
such  indebtedness,  provision  shall  be  made  for  the  collection  of  an 
annual  tax  sufficient  to  pay  the  interest  on  such  indebtedness  as  it 
falls  due  and  also  to  constitute  a  sinking  fund  for  the  payment  of 
the  principal  thereof  within  twenty  years  from  the  time  of  con- 
tracting the  same.  Any  indebtedness  or  liability  incurred  con- 
trary to  this  provision  shall  be  void. 

MUNICIPAL  INDEBTEDNESS.— This  provision  is  to  be  naturally 
and  reasonably  construed  as  providing  that  all  legitimate  indebted- 
ness of  the  municipality  must  not  exceed  all  the  revenues  and  income 
provided  for  that  year.  (Higgins  v.  San  Diego,  131  Cal.  294,  63  Pac. 
470.) 

It  refers  only  to  the  acts  or  contracts  of  the  city  and  not  to  liabili- 
ties which  the  law  may  cast  upon  her.  (McCracken  v.  San  Fran- 
cisco, 16  Cal.  591;  Lewis  v.  Widber,  99  Cal.  412,  33  Pac.  1128.) 

It  does  not  apply  to  the  payment  of  the  salary  of  a  public  officer, 
whose  office  has  been  created  and  salary  fixed  by  law.  (Lewis  v. 
Widber,  99  Cal.  412,  33  Pac.  1128;  Harrison  v.  Horton,  5  Cal  App' 
415,  90  Pac.  716.) 

It  does  not  apply  to  the  obligation  of  a  city  to  return  money  which 
she  has  received  by  mistake  or  without  authority  of  law.  (Argenti 
V.  San  Francisco,  16  Cal.  255.) 

It  does  not  apply  to  a  board  of  trustees  of  a  free  public  library  of 
a  city.  (Robertson  v.  Board  of  Library  Trustees,  136  Cal.  403,  69 
Pac.  88.) 

Under  this  section  no  indebtedness  or  liability  can  be  incurred  by 
a  municipality  (except  in  the  manner  therein  provided),  exceeding 
m  any  year  the  income  ana  revenue  actually  received  by  it.  Each 
year's  income  and  revenue  must  pay  each  year's  indebtedness  and  lia- 
bility, and  no  indebtedness  or  liability  incurred  in  any  one  year  can 
be  paid  out  of  the  income  of  any  future  year.  (San  Francisco  Gas 
Co.  V.  Brickwedel,  62  Cal.  641;  Schwartz  v.  Wilson,  75  Cal.  502,  17 
Pac.  449;  Smith  v.  Broderick,  107  Cal.  644,  48  Am.  St.  Rep.  167*  40 
Pac.  1033;  Weaver  v.  San  Francisco,  111  Cal.  319,  43  Pac.  972;  Mon- 
tague &  Co.  v.  English,  119  Cal.  225,  51  Pac.  327.) 

This  is  an  inhibition  against  which  a  municipality  cannot  incur 
any  indebtedness  exceeding  in  any  year  the  income  and  revenue  pro- 
vided for  it  for  such  year  except  in  the  mode  prescribed,  and  the 
mode  prescribed,  therefore,  becomes  the  measure  of  the  power  of  the 


465  CITIES,    COUNTIES  AND   TOWNS.         Art.  XI,  §  18 

municipality  to  incur  an  indebtedness  beyond  the  constitutional  limit. 
(City  of  Santa  Cruz  v.  Wykes,  202  Fed.  357,  120  C.  C.  A.  485.) 

The  power  to  create  the  excess  municipal  indebtedness,  given  by 
this  section,  docs  not  abide  with  the  municipality  or  its  common  coun- 
cil alone,  but  with  the  assent  of  two-thirds  of  its  electors.  (City  of 
Santa  Cruz  v.  Wykes,  202  Fed.  357,  120  C.  C.  A.  485.) 

The  fact  that  the  obligation  is  reduced-  to  judgment  and  a  special 
tax  levied  and  collected  for  its  payment  does  not  alter  the  case. 
(Smith  V.  Broderick,  107  Cal.  644,  48"  Am.  St.  Eep.  167,  40  Pac.  1033; 
Goldsmith  v.  San  Francisco,  115  Cal.  36,  46  Pac.  816.) 

A  creditor  of  the  city  does  not  acquire  a  right  to  be  paid  out  of  the 
income  for  any  subsequent  year  on  the  ground  that  the  funds  were 
deple':ed  by  a  large  excess  in  the  expenses  of  a  general  election  over 
the  es-iimate  made  by  the  supervisors.  (Weaver  v.  San  Francisco,  111 
Cal.  319,  43  Pac.  972.) 

The  income  provided  for  a  county  during  a  given  fiscal  year  must 
be  applied  to  the  payment  of  the  county  indebtedness  incurred  during 
such  year,  before  the  payment  of  any  indebtedness  of  a  preceding  year 
can  be  made  therefrom.     (Shaw  v.  Statler,  74  Cal.  258,  15  Pac.  833.) 

Moneys  of  a  previous  fiscal  j'ear,  remaining  in  the  treasury  in  a 
subsequent  year,  are  not  part  of  the  fund  of  the  subsequent 
year,  but  they  remain  a  part  of  the  fund  of  the  previous  year,  and  a 
claimant  of  that  fund  cannot  be  robbed  of  his  due  by  a  technical 
transfer.     (Bilby  v.  McKenzie,  112  Cal.  143,  44  Pac.  341.) 

Where  the  revenue  of  one  fiscal  year  has  been  exhausted,  the  citv 
ofiicers  cannot,  for  the  purpose  of  providing  for  the  present  needs  of 
the  municipality  during  the  remainder  of  the  year,  incur  debts  to  be 
met  in  a  subsequent  year,  except  in  the  manner  provided  in  this  sec- 
tion.    (Bradford  v.  San  Francisco,  112  Cal.  537,  44  Pac.  912.) 

This  section  does  not  prohibit  the  auditing  of  demands  for  salaries, 
although  the  aggregate  amount  of  the  salaries  for  a  given  year  would 
exceed  the  amount  limited  by  the  board  of  supervisors  for  the  paj'- 
ment  of  such  salaries  during  that  year.  (Welch  v.  Strother,  74  Cal. 
413,  16  Pac.  22.) 

This  section  does  not  apply  to  irrigation  districts.      (In  re  Madera 
Irr.  Dist.,  92  Cal.  296,  27  Am.  St.  Eep.  106,  14  L.  R.  A.  755,  28  Pac. 
'  272,  675.) 

A  contract  for  future  annual  payments  for  a  sewer  farm  is  not  a 
present  liability.  (McBean  v.  Fresno,  112  Cal.  159,  53  Am.  St.  Rep. 
191,  31  L.  R.  A.  794,  44  Pac.  358;  Smilie  v.  Fresno  County,  112  Cal. 
311,  44  Pac.  556;  Higgins  v.  San  Diego  Water  Co.,  118  Cal.  524,  45 
Pac.  824,  50  Pac.  670.) 

Sections  4445  to  4449  of  the  Political  Code  are  not  in  conflict  with 
this  section,  since  they  only  provide  for  a  change  in  the  form  of  the 
evidence  of  the  indebtedness,  and  not  for  the  creation  of  new  indebt- 
edness.    (Los  Angeles  v.  Teed,  112  Cal.  319,  44  Pac.  580.) 

An  action  by  a  taxpayer  will  lie  to  enjoin  the  officers  of  a  city 
from  incurring  any  indebtedness  in  violation  of  this  provision. 
(Bradford  v.  San  Francisco,  112  Cal.  537,  44  Pac.  912.) 

A  claim  arising  under  a  contract  for  the  burial  of  the  indigent  dead 
is  within  this  provision.  (Pacific  Undertakers  v.  Widber,  113  Cal. 
201,  45  Pac.  273.) 

Coustitution — 30 


Art.  XI,  §  18  CONSTITUTION  OF  1879.  466 

The  fact  that  the  indebtedness  is  incurred  for  an  urgent  necessity 
will  not  take  the  case  out  of  this  provision.  (Buck  v.  Eureka,  119 
Cal.  44,  50  Pac.  1065.) 

Notwithstanding  this  provision,  a  judgment  against  a  municipality 
should  be  in  form  a  general  judgment,  although  it  and  the  liability 
on  which  it  is  based  can  only  be  paid  out  of  the  municipal  revenues 
of  the  fiscal  year  in  which  the  liability  was  incurred.  (Buck  v. 
Eureka,  119  Cal.  44,  50  Pac.  1065.) 

A  judgment  upon  a  claim  against  a  city,  although  payable  only  out 
of  the  funds  of  a  particular  fiscal  year,  should  be  general  in  form 
and  should  not  direct  out  of  what  funds  it  should  be  paid.  (Fresno 
Canal  etc.  Co.  v.  McKenzie,  135  Cal.  497,  67  Pac.  900.) 

A  sum  payable  upon  a  contingency  is  not  a  debt  within  the  mean- 
ing of  this  section,  and  cannot  become  such  until  the  contingency  hap- 
pens.    (DolEtnd  V.  Clark,  143  Cal.  176,  76  Pac.  958.) 

A  contract  to  continue  for  a  series  of  years,  and  providing  for  pay- 
ments thereunder  at  different  times,  is  not  in  violation  of  this  pro- 
vision.    (Doland  v.  Clark,  143  Cal.  176,  76  Pac.  958.) 

An  implied  liability  of  a  city  is  within  the  prohibition  of  this  sec- 
tion.    (Buck  V.  Eureka,  124  Cal.  61,  56  Pac.  612.) 

An  implied  liability  for  services  rendered  by  an  attorney  of  the 
city  is  incurred  when,  from  time  to  time,  the  services  were  fully  ren- 
dered, and  the  city,  with  knowledge,  accepted  the  benefit  of  them. 
(Buck  V.  Eureka,  124  Cal.  61,  56  Pac.  612.) 

In  an  action  concerning  the  validity  of  a  municipal  obligation,  it 
is  error  to  reject  evidence  of  the  condition  of  the  treasury  at  the  time 
it  was  incurred.     (Buck  v.  Eureka,  124  Cal.  61,  56  Pac.  612.) 

Although  there  may  be  no  money  in  the  fund  out  of  which  a  lia- 
bility is  payable  at  the  time  it  is  created,  still,  if  at  the  end  of  the 
fiscal  year  there  is  money  in  such  fund,  it  may  be  applied  to  such  lia- 
bility.    (Higgins  V.  San  Diego,  131  Cal.  294,  63  Pac.  470.) 

This  section  only  requires  the  assent  of  two-thirds  of  such  electors 
as  vote  on  the  proposition  of  incurring  the  indebtedness,  and  not 
two-thirds  of  those  voting  at  the  election.  (Rowland  v.  Board  of 
Supervisors,  109  Cal.  152,  41  Pac.  864.) 

The  fact  that  the  election  is  held  at  the  same  time  and  place  as  the 
general  election  does  not  affect  the  character  of  the  election.  (IIow- 
land  V.  Board  of  Supervisors,  109  Cal.  152,  41  Pac.  864.) 

This  section  does  not  require  that  at  the  time  of  the  sale  or  issu- 
ance of  the  bonds,  or  the  incurring  of  the  bonded  indebtedness,  a 
sinking  fund  or  interest  tax  be  levied,  but  only  that  provision  shall 
be  made  for  their  collection.  (Howland  v.  Board  of  Supervisors,  109 
Cal.  152,  41  Pac.  864.) 

Where  the  law  provides  that  "at  least  two-thirds  of  the  electors 
voting  at  such  special  election  shall  be  necessary,"  two-thirds  of  all 
persons  voting  at  the  election,  and  not  merely  two-thirds  of  those 
voting  upon  the  proposition,  are  necessary,  (Law  v.  San  Francisco, 
144  Cal.  384,  77  Pac.  1014.) 

An  order  by  the  supervisors  annexing  a  school  district  to  a  high 
school  district  upon  terms  of  agreement  which  essentially  involve 
the  assumption  by  the  school  district  of  a  pro  rata  part  of  the  bonded 
debt  of  the  high  school  district,  without  the  vote  herein  required,  is 


467  CITIES,    COUNTIES   AND    TOWNS.         Art.  XI,  §  l8 

void.  (People  v.  Hanford  Union  High  School  District,  148  Cal.  705, 
84  Pac.  193.) 

The  objection  that  the  expense  of  an  election  under  the  initiative 
cr  referendum  law  might  exceed  the  indebtedness  permitted  by  this 
section  cannot  prevail  to  make  such  law  unconstitutional.  (In  re 
Pfahler,  150  Cal.  71,  11  Ann.  Cas.  911,  11  L.  R.  A.  (N.  S.)  1092,  88 
Pac.  270.) 

A  board  of  supervisors  cannot  during  the  fiscal  year  allow  claims 
against  the  indigent  fund  in  excess  of  tlie  revenues  provided  for  that 
year,  and  then,  by  a  fictitious  sale  of  county  property,  and  the  re- 
purchase thereof  after  the  commencement  of  the  next  fiscal  year, 
draw  a  warrant  on  the  next  year's  fund  to  pay  the  indebtedness  in- 
curred during  the  previous  year.  (County  of  Tehama  v.  Sisson,  152 
Cal.  167,  92  Pac.  64.) 

The  object  of  this  section  was  to  insure  that  at  the  time  of  the  gen- 
eral tax  levy  each  year  provision  would  be  made  for  such  money  as 
would  be  necessary  to  pay  interest  and  principal  falling  due  before 
the  time  of  the  next  general  tax  levy  and  to  make  up  the  necessary 
sinking  fund.      (Johnson  v.  Williams,  153  Cal.  368,  95  Pac.  655.) 

Courts  of  equity  have  power  to  protect  and  enforce  the  will  of  the 
people  in  the  issuance  of  bonds.  (Cerini  v.  De  Long,  7  Cal.  App.  398, 
94  Pac.  582.) 

The  amendment  allowing  the  city  and  county  of  San  Francisco  to 
pay  certain  claims  against  it  was  permissive  only  and  not  compulsory. 
(Weaver  v.  San  Francisco,  146  Cal.  728,  81  Pac.  119.) 

An  act  W'Ould  be  void  so  far  as  it  purported  to  authorize  the  issu- 
ance of  bonds  maturing  more  than  forty  years  from  the  time  of  con- 
tracting the  same,  leaving  it  in  full  force  with  respect  to  an  issue 
of  bonds  maturing  within  such  period,  if  it  was  otherwise  valid. 
(Brook.-s  V.  City  of  Oakland,  160  Cal.  423,  117  Pac.  433.) 

This  section  is  not  applicable  to  a  board  of  public  service  commis- 
sioners in  purchasing  ground  and  erecting  thereon  an  administrative 
building  for  its  uses.  (Mesmer  v.  Board  of  Public  Service,  23  Cal. 
App.  578,  138  Pac.  935.) 

A  notice  of  an  election  to  authorize  a  bond  issue  which  recites  that 
the  election  is  called  to  vote  bonds  in  the  sum  of  twenty  thousand 
dollars  for  the  construction  of  a  sewer,  and  which  declares  that  the 
estimated  cost  of  the  improvement  is  twenty  thousand  dollars,  is  not 
insufficient  in  failing  to  state  the  amount  of  the  proposed  indebted- 
ness as  required  by  this  section.  (City  of  Venice  v.  Lawrence,  24  Cal. 
App.  350,  141  Pac.  406.) 

As  to  the  sufficiency  of  the  notice  of  the  election,  see  Los  Angeles 
V.  Teed,  112  Cal.  319,  44  Pac.  580. 

W^hat  constitutes  "indebtedness"  prohibited  by  law.  See  notes, 
44  Am.  St.  Rep.  230;  7  R.  C.  L.,  §28,  p.  953. 

Eight  of  municipality  to  contract  for  periodical  payments  through- 
out term  of  years  where  aggregate  payments  exceed  authorized 
debt  limit.     See  notes,  7  Ann.  Cas.  150;  Ann.  Cas.  1913B,  1177. 

Evasion  of  municipal  debt  limit  by  creation  of  holding  corpora- 
tion for  future  purchase.     See  note,  2  Ann.  Cas.  986. 


Art.  XI,  §  19 


CONSTITUTION   OF    1879. 


468 


Eecitals  in  municipal  bond  that  debt  limit  has  not  been  exceeded 

as  affecting  validity  thereof  in  hands  of  purchaser.     See  note, 

17  Ann.  Cas.  1245. 
Interest   on   municipal   bonds   as   factor   in    determining   whether 

municipality  has  exceeded  constitutional  debt  limit.     See  note, 

17  Ann.  Cas.  1243. 
Eight   of  municipality  to   contract   for  public   improvement   with 

deferred  payments  where  cost  exceeds  debt  limit.     See  note,  17 

Ann.  Cas.  420, 


Municipal  ownership  of  public  utilities. 

Sec.  19.  Any  municipal  corporation  may  establisli  and 
operate  public  works  for  supplying  its  inhabitants  with 
light,  water,  power,  heat,  transportation,  telephone  service 
or  other  means  of  communication.  Such  works  may  be  ac- 
quired by  original  construction  or  by  the  purchase  of  exist- 
ing works,  including  their  franchises,  or  both.  Persons  or 
corporations  may  establish  and  operate  works  for  supplying 
the  inhabitants  with  such  services  upon  such  conditions  and 
under  such  regulations  as  the  municipality  may  prescribe 
under  its  organic  law,  on  condition  that  the  municipal  gov- 
ernment shall  have  the  right  to  regulate  the  charges  thereof. 
A  municipal  corporation  may  furnish  such  services  to  in- 
habitants outside  its  boundaries;  provided  that  it  shall  not 
furnish  any  service  to  the  inhabitants  of  any  other  munici- 
pality owning  or  operating  works  supplying  the  same  ser- 
vice to  such  inhabitants,  without  the  consent  of  such  other 
municipality,  expressed  by  ordinance.  (Amendment  ap- 
proved October  10,  1911.) 

[AMENDMENT    OF    1885.] 

Sec.  19.  In  any  city  where  there  are  no  public  works  owned 
and  controlled  by  the  municipality  for  supplying  the  same  with 
water  or  artificial  light,  any  individual,  or  any  company  duly  in- 
corporated for  such  purpose,  under  and  by  authority  of  the  laws  of 
this  state,  shall,  uiider  the  direction  of  the  superintendent  of  streets, 
or  other  ofiicer  in  control  thereof,  and  under  such  general  regula- 
tions as  the  municipality  may  prescribe,  for  damages  and  indem- 
nity for  damages,  have  the  privilege  of  using  the  public  streets 
and  thoroughfares  thereof,  and  of  laying  down  pipes  and  conduits 
therein,  and  connections  therewith,  so  far  as  may  be  necessary  for 
introducing  into  and  supplying  such  city  and  its  inhabitants  either 
with  gaslight,  or  other  illuminating  light,  or  with  fresh  water  for 
domestic  and  all  other  purposes,  upon  the  condition  that  the  mu- 
nicipal government  shall  have  the  right  to  regulate  the  charges 
thereof.     (Eatification  declared  February  12,  1885.) 


469  CITIES,    COUNTIES  AND   TOWNS.        Art.  XI,  §  19 

[ORIGINAL  SECTION.] 
Sec.  19.  No  public  work  or  improvement  of  any  description 
whatsoever  shall  be  done  or  made,  in  any  city,  in,  upon  or  about 
the  streets  thereof,  or  otherwise,  the  cost  and  expense  of  which  is 
made  chargeable  or  may  be  assessed  upon  private  property  by 
special  assessment,  unless  an  estimate  of  such  cost  and  expense 
shall  be  made,  and  an  assessment,  in  proportion  to  benefits,  on  the 
property  to  be  affected  or  benefited,  shall  be  levied,  collected,  and 
paid  into  the  city  treasury  before  such  work  or  improvement  shall 
be  commenced,  or  any  contract  for  letting  or  doing  the  same  au- 
thorized or  performed.  In  any  city  where  there  are  no  public 
works  owned  and  controlled  by  the  municipality,  for  supplying  the 
same  with  water  or  artificial  light,  any  individual,  or  any  company 
duly  incorporated  for  such  purpose  under  and  by  authority  of  the 
laws  of  this  state,  shall,  under  the  direction  of  the  superintendent 
of  streets,  or  other  officer  in  control  thereof,  and  under  such  gen- 
eral regulations  as  the  municipality  may  prescribe  for  damages  and 
indemnity  for  damages,  have  the  privilege  of  using  the  public 
streets  and  thoroughfares  thereof,  and  of  laying  down  pipes  and 
conduits  therein,  and  connections  therewith,  so  far  as  may  be 
necessary  for  introducing  into  and  supplying  such  city  and  its 
inhabitants  either  with  gaslight  or  other  illuminating  light,  or 
with  fresh  water  for  domestic  and  all  other  purposes,  upon  the  con- 
dition that  the  municipal  government  shall  have  the  right  to  regu- 
late the  charges  thereof. 

WATER  AND  LIGHT.— The  word  "city,"  used  in  this  section,  in- 
cludes "town."  (Pereria  v.  Wallace,  129  Cal.  397,  62  Pac.  61;  People 
V.  Stephens,  62  Cal.  209.) 

The  provisions  of  this  section  are  self-executing.  (Denninger  v. 
Eecorder's  Court,  145  Cal.  629,  79  Pac.  360;  Boca  etc.  R.  E.  Co.  v. 
Sierra'Valleys  R.  R.  Co.,  2  Cal.  App.  546,  84  Pac.  298.) 

Nothing  is  required  to  make  the  power  granted  by  this  provision 
completely  operative  except  a  law  for  the  organization  ox  municipal 
corporations  and  prescribing  a  mode  of  exercising  legislative  power. 
(Denninger  v.  Recorder's  Court,  145  Cal.  629,  79  Pac.  360.) 

The  power  conferred  by  this  section  is  not  dependent  upon  action 
by  the  legislature  under  section  33  of  article  IV.  (Denninger  v.  Re- 
corder's Court,  145  Cal.  629,  79  Pac.  360.) 

The  franchise  to  lay  pipes  and  conduits  or  erect  poles  is  real  estate 
and  is  inseparably  annexed  to  the  soil,  and  has  a  local  situation  in 
the  place  where  the  right  is  exercised.  (Stockton  Gas  etc.  Co.  v.  San 
Joaquin  County,  148  Cal.  313,  7  Ann.  Cas.  511,  5  L.  R.  A.  (N.  S.)  174, 
83  Pac.  54.) 

The  fact  that  the  gas  which  furnishes  light  also  serves  for  cooking 
and  heating  does  not  prevent  the  legislative  authorities  from  fixing 
the  rate  thereof.  (Denninger  v.  Recorder's  Court,  145  Cal.  638,  79 
Pac.  364.) 

The  provision  of  the  act  of  1858,  requiring  water  companies  to  fur- 
nish water  free  of  charge  to  cities  and  counties,  was  abrogated  by 
this  section.     (Spring  Valley  W.  W.  v.  San  Francisco,  61  Cal.  18.) 

The  board  of  supervisors  has  no  power  to  delegate,  to  a  .commission 
the  power  to  fix  the  rates  to  be  paid   by   the   county   for   gas.     But 


Art.  XI,  §  19  CONSTITUTION  OF  1879.  470 

where  the  board  afterward  ratifies  the  rates  fixed  by  the  commission, 
the  final  determination  with  respect  to  the  rates  is  exercised  by  the 
board,  and  is  valid.  (San  Francisco  Gas  Light  Co.  v.  Dunn,  62  Cal. 
380.)  ■ 

This  section  does  not  deprive  the  right  to  collect  rates  for  water  of 
its  character  of  a  franchise.  (Spring  Valley  W.  W.  v.  Schottler,  62 
Cal.  69.) 

Although  a  contract  fixing  the  price  of  gas  may  be  void,  still  if  the 
gas  is  actually  furnished  to  and  used  by  the  municipality,  the  board 
may  allow  for  its  payment  such  sum  as  it  is  reasonably  worth.  (San 
Francisco  Gas  Light  Co.  v.  Dunn,  62  Cal.  580.) 

In  the  absence  of  an  express  limitation,  a  contract  by  the  board  as 
to  rates  for  the  term  of  five  years  will  not  be  held  unreasonable.  (San 
Francisco  Gas  Light  Co.  v.  Dunn,  62  Cal.  580.) 

The  question  of  what  is  a  reasonable  rate  is  a  question  of  fact. 
(Eedlands  etc.  Co.  v.  Eedlands,  121  Cal.  312,  53  Pac.  791.) 

The  water  company  is  not  entitled  to  be  reimbursed  from  the  in- 
come derived  from  the  rates  for  interest  upon  its  indebtedness,  nor 
for  depreciation  of  its  plant,  aside  from  the  amount  requisite  for  its 
maintenance  and  repairs  during  the  year.  (Eedlands  etc.  Co.  v.  Eed- 
lands, 121  Cal.  312,  53  Pac.  791.) 

The  bonded  or  other  indebtedness  of  the  company  is  not  to  be  con- 
sidered; but  the  fair  value  of  the  property  which  is  necessarily  used 
in  furnishing  the  water  is  the  basis  upon  which  to  determine  the 
amount  of  revenue,  which  should  be  the  same  whether  the  works  are 
acquired  or  constructed  by  the  company  with  its  own  resources,  or 
with  money  borrowed  from  others.  (Eedlands  etc.  Co.  v.  Eedlands, 
121  Cal.  365,  53  Pac.  843.) 

The  company  has  no  absolute  right  to  receive  a  given  per  cent  on 
its  capital  stock.  (Eedlands  etc.  Co.  v.  Eedlands,  121  Cal.  365,  53 
Pac.  843.) 

The  rights  of  the  public,  as  well  as  those  of  the  stockholders,  are  to 
be  considered;  and  the  public  cannot  be  subjected  to  unreasonable 
rates  in  order  simply  that  stockholders  may  have  dividends.  The 
company  has  the  right  to  receive  only  what,  under  all  the  circum- 
stances, is  such  compensation  as  will  be  just  to  it  and  to  the  public. 
(Eedlands  etc.  Co.  v.  Eedlands,  121  Cal.  365,  53  Pac.  843.) 

An  ordinance  requiring  a  special  permission  to  be  obtained  from  the 
board  of  supervisors,  before  streets  can  be  obstructed,  is  reasonable. 
(Mutual  Electric  etc.  Co.  v.  Ashworth,  118  Cal.  1,  50  Pac.  10.) 

Under  this  section  the  city  may  require  special  permission  from  the 
city  before  poles  can  be  erected  in  the  streets  by  an  electric  light  com- 
pany; and  the  mere  fact  that  the  permission  is  granted  to  one  com- 
pany and  unjustly  refused  to  another  will  not  entitle  the  latter  to  en- 
join the  city  authorities  from  interfering  with  the  erection  of  such 
poles^the  proper  remedy  being  to  compel  the  granting  of  the  permit 
by  mandamus.  (Mutual  Electric  etc.  Co.  y.  Ashworth,  118  Cal.  1,  50 
Pac.  10.) 

By  tbis  section  the  operation  of  gasworks  is  recognized  as  a  lawful 
business.     (In  re  Smith,  143  Cal.  368,  77  Pac.  180.) 

A  gas  company  does  not  forfeit  its  franchise  by  supplying  gas  for 
cooking  and  heating  as  well  as  for  lighting  purposes  which  does  not 


471  CITIES,    COUNTIES   AND   TOWNS.         Art.  XI,  §  19 

subject  the  streets  to  any  additional  burden.  (People  v.  Los  Angeles 
etc.  Gas  Co.,  1.50  Cal.  557,  89  Pac.  108.) 

This  section  only  applies  to  cities  in  which  there  are  no  public 
works  owned  and  controlled  by  the  city  for  supplying  the  same  with 
water.  (Colegrove  Water  Co.  v.  Hollywood,  151  Cal.  425,  13  L.  R.  A. 
(N.  S.)  904,  90  Pac.  1053.) 

A  municipal  corporation  upon  which  has  devolved  the  duty  of  sup- 
plying water  to  another  municipality  is  a  "corporation  duly  incor- 
porated for  such  purpose"  within  the  meaning  of  the  Constitution. 
(South  Pasadena  v.  Pasadena  Land  etc.  Co.,  152  Cal.  579,  93  Pac. 
490.) 

The  power  of  a  municipality  to  acquire  and  control  public  utilities 
is  recognized  by  the  Constitution  in  the  language  "in  any  city  where 
there  are  no  public  works  owned  and  controlled  by  the  municipality 
for  supplying  the  same  with  water  or  artificial  light."  (Piatt  v.  City 
and  County  of  San  Francisco,  158  Cal.  74,  110  Pac.  304.) 

The  mere  fact  that  a  regulation  will  work  irreparable  injury  to  the 
company  and  will  work  inconvenience  and  deprival  of  use  in  the  man- 
ner theretofore  enjoyed  by  the  inhabitants  of  the  city  sufficiently 
show  an  arbitrary  or  unreasonable  exercise  of  power.  (Merced  Falls 
Gas  etc.  Co.  v.  Turner,  2  Cal.  App.  720,  84  Pac.  239.) 

An  electric  light  company  by  erecting  poles  by  permission  of  the 
municipal  authorities  does  not  obtain  an  absolute,  indefeasible  right 
to  have  the  poles  remain  at  the  particular  spot  for  all  time,  and  the 
city  authorities  have  the  power  by  reasonable  regulations  to  compel 
the  company  to  change  their  location.  (Merced  Falls  Gas  etc.  Co.  v. 
Turner,  2  Cal.  App.  720,  84  Pac.  239.) 

This  section  does  not  curtail  the  power  of  the  municipality  in  mak- 
ing needful  and  reasonable  regulations  touching  the  use  of  the  streets, 
but  the  municipality  will  not  be  permitted  to  enforce  regulations 
which  are  tantamount  to  a  denial  of  the  right,  or  are  arbitrary,  capri- 
cious, unreasonable,  or  prohibitory  in  their  nature  or  effect.  (Merced 
Falls  Gas  etc.  Co.  v.  Turner,  2  Cal.  App.  720,  84  Pac.  239.) 

An  ordinance  requiring  persons  who  desire  to  lay  pipes  in  the  streets 
to  make  a  verified  application  for  a  permit  from  the  superintendent 
of  streets  is  invalid  and  is  not  a  regulation  for  "damages  and  indem- 
nity for  damages."     (In  re  Johnston,  137  Cal.  115,  69  Pac.  973.) 

A  statute  requiring  municipalities  to  sell  franchises  for  laying 
pipes,  etc.,  to  the  highest  bidder  is  void.  (Pereria  v.  Wallace,  129 
Cal.  397,  62  Pac.  61.) 

This  section  gives  to  every  person  the  right  to  use  the  public  streets 
of  a  municipality  for  the  purposes  indicated,  and  it  deprives  not  only 
the  municipality  from  granting,  but  the  legislature  from  authorizing 
the  granting,  of  franchises  upon  conditions  other  than  those  specified 
in  the  Constitution.  (Town  of  St.  Helena  v.  Ewer,  26  Cal.  App.  191, 
146  Pac.  191.) 

A  municipality  which  cannot  grant  franchises  by  legislative  act  on 
conditions  not  authorized  by  this  section  cannot  avoid  the  effect  of 
this  section  by  attempting  to  convert  its  legislative  acts  into  private 
contracts.  (Town  of  St.  Helena  v.  Ewer,  26  Cal.  App.  191,  146  Pac. 
191.) 


Art.  XI,  §  19 


CONSTITUTION   OF   1879. 


472 


The  grant  made  by  this  section  (as  amended  in  1885)  regarding  the 
\Tse  of  streets  for  water  or  gas-pipes  would  vest  only  when  actually 
accepted  by  the  exercise  of  the  right  granted,  and  would  be  assessable 
only  in  the  place  where  such  exercise  is  had.  (Western  Union  Tele- 
graph Co.  V.  Hopkins,  160  Cal.  106,  116  Pac.  557.) 

Under  this  section,  where  a  grant  of  a  franchise  by  the  state  or 
some  municipality  thereof  to  a  private  person  or  corporation  to  oper- 
ate a  public  utility  is  not  by  its  terms  made  exclusive,  and  the  city 
in  which  it  is  to  be  exercised  is  not,  by  the  law  or  ordinance  granting 
it,  forbidden  from  competing,  then  a  city  may  establish  its  own  works 
for  the  same  purpose  and  engage  in  the  same  public  service  within 
the  city,  although  it  may  thereby  injure  or  practically  destroy  the 
business  of  the  holder  of  such  franchise.  (Clark  v.  Los  Angeles,  160 
Cal.  30,  116  Pac.  722.) 

This  section  should  not  be  construed  to  grant  an  exclusive  franchise 
in  the  streets  to  any  individual  or  corporation,  or  to  prevent  a  city 
from  establishing  and  operating  public  waterworks  or  lightworks,  not- 
withstanding the  fact  that  private  persons  or  corporations  are  using 
the  streets  in  operating  works  of  the  same  kind.  (Clark  v,  Los  An- 
geles, 160  Cal.  30,  116  Pac.  722.) 

That  the  provisions  of  the  charter  of  1901  of  Pasadena  purporting 
to  give  full  control  as  to  the  use  of  streets  for  pipes  and  conduits  for 
the  furnishing  of  water  and  light  are  not  effective,  in  view  of  the 
direct  grant  for  those  purposes  made  by  this  section,  is  not  a  suffi- 
cient warrant  for  holding  that  it  was  not  intended  to  vest  such  con- 
trol in  the  city.  (Sunset  Tel.  &  Tel.  Co.  v.  Pasadena,  161  Cal.  265,  118 
Pac.  796.) 

A  corporation  which  at  the  time  of  the  amendment  of  this  section 
in  1911  was  supplying  the  inhabitants  of  San  Francisco  with  gas  and 
electric  light,  and  for  that  purpose  had  laid  pipes  and  conduits  in 
various  public  streets  of  San  Francisco,  had  on  that  date  a  vested 
right  to  occupy  parts  of  the  streets  for  the  purposes  specified  in  this 
section,  subject  to  the  limitations  therein  contained,  which  right  was 
not  and  could  not  be  impaired  by  the  amendment  of  this  section  in 
1911.  (Matter  of  Application  of  Keppelmann,  166  Cal.  770,  138  Pac. 
346.) 

The  franchise  to  lay  pipes  and  conduits  or  erect  poles  is  real  estate, 
and  is  inseparably  annexed  to  the  soil,  and  has  a  local  situation  in  the 
place  whelre  the  right  is  exercised.  (People  v.  Lawley,  17  Cal.  App. 
331,  119  Pac.  1089.) 

Either  gas  or  water  companies  possess  the  right,  having  a  commod- 
ity for  sale,  to  enter  upon  the  streets  of  a  city,  lay  their  pipes  and 
put  themselves  in  position  to  supply  any  demand  made  upon  them, 
regardless  of  any  existing  demand,  and  the  restriction  that  the  right 
to  lay  down  pipes  is  given  "so  far  as  may  be  necessary  for  introduc- 
ing into  and  supplying  such  city  and  its  inhabitants  either  with  gas- 
light or  other  illuminating  light,"  means  that  they  may  not  excavate 
the  streets  and  lay  down  pipes  therein  in  a  manner  other  than  that 
necessary  to  a  complete  and  practical  system  for  supplying  gas  or 
water  to  the  entire  city  and  its  inhabitants.  (Vernon  v.  Los  Angeles 
Gas  etc.  Corp.,  19  Cal.  App.  364,  125  Pac.  1084.) 

Section  548  of  the  Civil  Code,  in  so  far  as  it  makes  a  street  fran- 
chise necessary  for  a  water  company  to  supply  a  municipality  with 


473  CITIES,    COUNTIES   AND   TOWNS.         Art.  XI,  §  19 

water  in  bulk  under  a  contract,  which  water  the  municipality  distrib- 
utes to  its  inhabitants,  was  abrogated  b}^  this  section,  as  it  existed 
between  1885  and  1911,  giving  any  corporation  the  right  to  occupy 
the  streets  to  supply  water  to  the  inhabitants  or  to  the  citj'  itself, 
(Marin  Water  etc.  Co.  v.  Town  of  Sausalito,  168  Cal.  587,  1-13  Pac. 
767.) 

The  power  conferred  by  this  section  upon  a  municipality  to  regu- 
late the  charges  for  gas  sold  by  a  gas  company  is  not  limited  to  the 
establishing  of  a  maximum  rate,  but  authorizes  it  to  fix  a  rate  and 
prohibit  the  lowering  thereof,  directly  or  indirectly,  by  anj'^  sort  of 
device  which  the  gas  company  may  adopt.  (Economic  Gas  Co.  v.  Los 
Angeles,  168  Cal.  448,  143  Pac.  717.) 

This  section  confers  upon  the  cities  in  this  state  the  power  to  fix 
the  rates  at  which  water  is  to  be  delivered  to  the  inhabitants  of  a 
city  by  any  company  engaged  in  that  service.  (Title  Guarantee  etc. 
Co.  v.  Eailroad  Commission,  168  Cal.  295,  142  Pac.  878.) 

This  section,  coupled  with  the  duties  imposed  by  the  California  Con- 
stitution and  statutes  upon  municipalities  to  fix  water  rates  annually, 
and  upon  private  water  companies  within  municipalities  to  comply 
with  the  rates,  does  not  constitute  a  contract  that  the  city  will  not 
operate  a  competing  plant.  (Madera  Waterworks  v.  Madera,  228  U.  S. 
454,  57  L.  Ed.  915,  33  Sup.  Ct.  Kep.  571.) 

The  amendment  of  October  10,  1911,  to  this  section  granted  no  right 
to  a  telephone  company  to  occupy  the  streets  of  a  city  without  its 
consent.  (City  of  Pomona  v.  Sunset  Tel.  &  T.  Co.,  224  U.  S.  330,  56 
L.  Ed.  788,  32  Sup.  Ct.  Eep.  477.) 

A  water  or  light  company  gained  a  contract  right  to  extend  its 
mains  into  unopened  streets  by  establishing  a  water  or  light  plant, 
which  was  an  acceptance  of  the  state's  offer  made  under  this  section, 
as  amended  in  1885,  of  the  privilege  of  laying  pipes  in  streets  in 
municipalities.  (Russell  v.  Sebastian,  233  U.  S.  195,  58  L.  Ed.  912, 
34  Sup.  Ct.  Rep.  517,  reversing  Matter  of  Russell,  163  Cal.  668,  126 
Pac.  875;  Lukrawka  v.  Spring  Valley  Water  Co.,  169  Cal.  318,  146 
Pac.  641;  Pratt  v.  Spring  Valley  Water  Co.,  4  C.  R.  C.  1077,  1083.) 

The  amendment  of  1911,  and  ordinances  adopted  in  pursuance 
thereof,  requiring  franchises  for  extensions  by  companies  established 
in  municipalities  prior  to  the  amendment  of  1911,  unconstitutionally 
impaired  the  contract  rights  of  such  companies.  (Russell  v.  Sebastian, 
233  U.  S.  195,  58  L.  Ed.  912,  34  Sup.  Ct.  Rep.  517;  reversing  Matter 
of  Russell,  163  Cal.  668,  126  Pac.  875.) 

This  section  does  not  constitute  a  grant  of  unlimited  or  specific 
power  over  the  public  utilities  operating  within  its  borders  (except  in 
the  matter  of  rates)  to  any  city  whose  organic  law  contains  no  pro- 
vision for  the  exercise  of  such  power,  but  it  merely  places  the  utilities 
under  such  control  as  may  be  provided  for  by  the  charter  or  other 
organic  law  of  the  city.  (Oro  Electric  Corp.  v.  Railroad  Commission, 
169   Cal.  466,   147  Pac.   118.) 

This  section,  as  in  force  in  1889  and  1905,  gave  any  individual  or 
company  incorporated  for  that  purpose  the  privilege,  in  cities  which 
had  no  public  light  or  waterworks,  of  using  the  public  streets,  and 
of  laying  down  pipes  and  conduits  therein  for  the  purpose  of  supply- 


Art.  XI,  §  19 


CONSTITUTION   OF   1879. 


474 


ing  the  city  and  its  inhabitants  with  light  and  water.     (Oro  Electric 
Corp.    V.   E.   R.   Commission,   169   Cal.   466,   147   Pac.   118.) 

This  section,  as  it  read  prior  to  the  amendment  of  October  10,  1911, 
only  granted  a  franchise  to  use  city  streets  for  the  purpose  of  laying 
pipes  to  supply  gas  for  illumination,  and  the  right  to  use  streets  for 
the  supplying  of  gas  for  heat  and  power  was  not  granted  by  this 
section  as  it  then  existed.  (Hanford  v.  Hanford  Gas.  etc.  Co.,  169 
Cal.   749,   147   Pac.   969.) 

A  city  may,  by  virtue  of  this  section,  purchase  and  accept  existing 
works  of  public  utilities,  and  continue  the  service  of  such  utilities. 
(In  re  Southern  California  Mountain  Water  Co.  Lease,  1  C.  R.  C. 
520,   528.) 

This  section  as  amended  on  October  10,  1911,  giving  to  muni- 
cipalities the  right  to  regulate  charges  of  public  utilities,  probably 
has  no  application  to  steam  railroads,  but  does  apply  to  street  rail- 
roads.    (Niven  v.  San  Diego  Electric  Ry.  Co.,  3  C.  R.  C.  62,  64.) 

No  city  or  town  has  the  power  to  establish  the  fare  to  be  charged 
by  a  street  railroad  or  any  other  railroad  between  a  point  within  the 
city  limits  and  a  point  outside  of  the  city  limits.  (Ramos  v.  San  Fran- 
cisco-Oakland Terminal  Rys.,  3  C.  R.  C.  800,  802.) 

The  Railroad  Commission  has  no  jurisdiction  to  require  street  rail- 
way companies  to  exchange  transfers  for  transportation  between 
points  within  municipal  limits,  since  this  would  be  usurping  the 
power  to  regulate  the  rates  for  such  transportation,  which  power 
is  vested  exclusively  in  miunicipal  authorities.  (Thompson  v.  The 
San  Diego  Electric  Ry.  Co.,  3  C.  R.  C.  935,  936.) 

A  municipality  may  not  regulate  charges  for  electric  energy  where 
it  is  sold  to  the  municipality  and  not  to  its  inhabitants.  (Ukiah  v. 
The  Snow  Mountain  Water  &  Power  Co.,  4  C.  R.  C.  293,  297.) 

Municipalities  were  given  no  power  under  this  section  over  such 
matters  as  adequacy  of  service  of  water  companies  or  the  making 
of  extensions  by  them.  (Pratt  v.  Spring  Valley  Water  Co.,  4  C.  R.  C. 
1077,   1083.) 

See,  further,  as  to  water  rates,  note  to  section  33,  article  IV,  and 
section  1,  article  XIV. 

Power  of  municipalities  to  furnish  light.     See  note,  30   Am.   St. 
Rep.  225. 

STREET  ASSESSMENTS. — The  "front-foot"  method  of  assessment 
is  valid.  (Hadley  v.  Dague,  130  Cal.  207,  62  Pac.  500;  Cohen  v.  Ala- 
meda, 124  Cal.  504,  57  Pac.  377;  Chambers  v.  Satterlee,  40  Cal.  497; 
Emery  v.  San  Francisco  Gas  Co.,  28  Cal.  345;  Emery  v.  Bradford,  29 
Cal.  75;  Taylor  v.  Palmer,  31  Cal.  240;  Whiting  v.  Quaekenbush,  54 
Cal.  306;  Whiting  v.  Townsend,  57  Cal.  515;  Lent  v.  Tillson,  72  Cal. 
404,  14  Pac.  71;  Jennings  v.  Le  Breton,  80  Cal.  8,  21  Pac.  1127;  San 
Francisco  Pav.  Co.  v.  Bates,  134  Cal.  39,  66  Pac.  2;  Banaz  v.  Smith, 
133  Cal.  102,  65  Pac.  309.) 

An  assessment  for  improving  a  street  is  a  tax,  and  must  be  levied 
with  equality  and  uniformity.  (Whiting  v.  Quaekenbush,  54  Cal. 
306.) 

A  contract  for  a  street  improvement,  made  before  the  new  Consti- 
tution went  into  effect,  is  not  affected  by  its  provisions,  and  the  grant- 


475  CITIES,    COUNTIES   AND   TOWNS.         Art.  XI,  §  19 

lag  of  an  extension  of  time  for  tlie  performance  of  the  same  is  not 
a  new  contract.  (Oakland  Pav.  Co.  v.  Barstow,  79  Cal.  45,  21  Pae.  544; 
Ede  V.  Cogswell,  79  Cal.  278,  21  Pac.  767;  Ede  v.  Knight,  93  Cal.  159, 
28  Pac.  860.) 

The  provisions  of  this  section  in  its  original  form  were  self-execut- 
ing, and  the  provisions  of  the  act  of  1872,  relating  to  street  improve- 
ments in  San  Francisco,  and  authorizing  the  superintendent  of  streets 
to  execute  contracts  for  such  improvements  in  advance  of  the  levy 
and  collection  of  the  assessment,  were  inconsistent  with  it,  and  ceased 
to  be  operative  when  it  went  into  effect.  (McDonald  v.  Patterson,  o4 
Cal.  245;  Donahue  v.  Graham,  61  Cal.  276.) 

The  act  of  1863,  providing  for  the  widening  of  streets  in  San  Fran- 
cisco by  agreement  with  the  owners,  was  not  in  conflict  with  this  sec- 
tion.    (San  Francisco  v.  Kiernan,  98  Cal.  614,  33  Pae.  720.) 

The  provision  of  the  charter  of  San  Francisco  for  making  a  contract 
for  street  work  before  an  assessment  had  been  levied  and  collected 
was  repealed  by  this  section,  and  was  not  revived  by  the  constitu- 
tional amendment  dispensing  with  the  necessity  of  such  levy  and  col- 
lection. (Thomason  v.  Euggles,  69  Cal.  465,  11  Pac.  20;  Thomason  v. 
Ashworth,  73  Cal.  73,  14  Pac.  615.) 

The  amendment  to  this  section  in  1885  was  legally  adopted.  (Oak- 
land Pav.  Co.  V.  Tompkins,  72  Cal.  5,  1  Am.  St.  Rep.  17,  12  Pac.  801; 
Thomason  v.  Ashworth,  73  Cal.  73,  14  Pac.  615;  People  v.  Strother,  67 
Cal.  624,  8  Pac.  383;  Sacramento  Pav.  Co.  v.  Anderson,  1  Cal.  App. 
672,  82  Pac.  1069.  But  see  Oakland  Pav.  Co.  v.  Hilton,  69  Cal.  479,  11 
Pac.  3.) 


Art.  XII,  §  1 


CONSTITUTION    OF   1879. 


476 


ARTICLE  XII. 

COEPORATIONS. 

Corporations  to  be  forired  under  general  laws. 
Dues  to  be  secured  by  individual  liability,  etc. 
Stockholders  to  be  individually  liable. 
Corporations  construed. 
Banking  prohibited. 
Existing  charters,  when  invalid. 

Charters  not  to  be  extended,  nor  forfeiture  remitted. 
All  franchises  subject  to  the  right  of  eminent  domain. 
Eestrictions  on  powers  of  corporations. 
Liabilities  of  franchise  under  lease  or  grant. 
Corporation  stock,  restriction  on  issue  of. 
Election  of  directors — Cumulative  or  distributive  votes. 
State  not  to  loan  its  credit  nor  subscribe  to  stock  of  corpora- 
tions. 
Corporations  to  have  office  for  transaction  of  business  in  stocks. 
Foreign  corporations,  conditions. 
Corporations,  where  to  be  sued. 

Transportation  companies,  rights  and  liabilities  of. 
Officers  of  corporations,  restriction  as  to  interests. 
Free  passes  on  railroads  prohibited  to  state  officials. 
Fares  and  freights  to  be  regulated  by  government. 
Discrimination  in  charges  by  carriers  forbidden. 
Railroad  commission,  organization  of. 
Railroad  commission,  regulation  of  public  utilities. 
Railroad  commission  power  in  eminent  domain. 
Legislature  to  pass  laws  to  enforce  this  article. 

Corporations  to  be  formed  under  general  laws. 

Sec.  1.  Corporations  may  be  formed  under  general  laws, 
but  shall  not  be  created  by  special  act.  All  laws  now  in 
force  in  this  state  concerning  corporations,  and  all  laws  that 
may  be  hereafter  passed  pursuant  to  this  section,  may  be 
altered  from  time  to  time  or  repealed. 

CORPORATIONS — What  axe. — A  levee  district  is  not  a  private  cor- 
poration, neither  is  it  a  municipal  corporation,  but  it  belongs  to  a  class 
by  itself,  the  creation,  organization,  and  control  of  which  is  not  lim- 
ited by  the  Constitution.  (People  v.  Levee  Dist.  No.  6,  131  Cal.  30, 
63  Pac.  676.) 

Prior  to  the  new  Constitution,  a  reclamation  district  was  held  to  be 
a  public  corporation,  which  could  be  created  by  special  act.  (Recla- 
mation Dist.  No.  124  V.  Gray,  95  Cal.  601,  30  Pac.  779.) 

Irrigatioii  districts,  with  respect  to  their  public  functions,  are  to  be 
classed  with  public  corporations;  but  with  regard  to  the  private  rights 
of  the  individual  land  owners,  they  are  to  be  classed  as  private  cor- 
porations. (Merchants'  Nat.  Bank  v.  Eseondido  Irr.  Dist.,  144  Cal. 
329,  77  Pac.  937.) 


§ 

1. 

§ 

2. 

§ 

3. 

§ 

4. 

§ 

5. 

§ 

6. 

§ 

7. 

§ 

8. 

§ 

9. 

§ 

10. 

§ 

11. 

§ 

12. 

§ 

13. 

§ 

14. 

§ 

15. 

§ 

16. 

§ 

17. 

§ 

18. 

§ 

19. 

§ 

20. 

§ 

21. 

§ 

22. 

§ 

23. 

§ 

23a 

§ 

24. 

477  CORPORATIONS.  Art.  XII,  §  1 

This  section  refers  to  private  corporations,  and  it  has  no  application 
to  the  creation  of  public  corporations  under  the  control  and  govern- 
ment of  the  state,  such  as  state  hospitals.  (Napa  State  Hospital  v. 
Darso.  153  Cal.  698,  15  Ann.  Cas.  910,  13  L.  E.  A.  (N.  S.)  643,  96  Pac. 
355.)  ■ 

A  district  agricultural  association  is  a  public  agency  of  the  state, 
and  is  a  public  corporation.  (People  v.  San  Joaquin  Valley  Agricul- 
tural Assn.,  151  Cal.  797,  91  Pac.  740.) 

Eeclamation  districts  do  not  come  within  the  purview  of  this  sec- 
tion. (Keclamation  Dist.  No.  70  v.  Sherman,  11  Cal.  App.  399,  105 
Pac.  277.) 

Distinction  between  public  and  private  corporation.     See  notes,  1 
Ann.  Cas.  371;  7  R.  C.  L.,  §  14,  p.  39. 

Creation  of. — The  legislature  cannot  confer  upon  corporations  any 
powers  or  grant  them  any  privileges  by  special  act.  (San  Francisco 
V.  Spring  Valley  W.  W.,  48  Cal.  493.) 

This  section  does  not  authorize  the  legislature  to  enact  general  laws 
under  which  corporations  might  extend  the  term  of  their  corporate 
existence.     (The  Boca  Mill  Co.  v.  Curry,  154  Cal.  326,  97  Pac.  1117.) 

A  corporation  sole  can  be  created  only  by  compliance  with  the  pro- 
visions of  the  Civil  Code.     (Blakeslee  v.  Hall,  94  Cal.  159,  29  Pac.  623.) 

This  section  does  not  prohibit  the  assignment  of  a  franchise  to  a 
legally  organized  corporation,  by  persons  having  the  lawful  right  to 
exercise  and  transfer  the  same — this  section  referring  only  to  power 
directly  conferred  upon  corporations  by  the  legislature.  (People  v. 
Stanford,  77  Cal.  360,  2  L.  R.  A.  92,  18  Pac.  85,  19  Pac.  693.) 

A  law  providing  a  special  method  of  assessment  and  collection  of 
taxes  against  railroads  situated  in  more  than  one  county  is  not  in  vio- 
lation ot  this  section.  (People  v.  Central  Pac.  R.  R.  Co.,  105  Cal.  576, 
38  Pac.  905;  affirmed.  Central  Pacific  R.  R.  Co.  v.  People,  162  U.  S. 
91,  40  L.  Ed.  903,  16  Sup.  Ct.  Rep.  766;  People  v.  Central  Pac.  R.  E. 
Co.,  83  Cal.  393,  23  Pac  303,  overruled.) 

An  act  "to  establish  water  rates  in  the  city  and  county  of  San  Fran- 
cisco," and  a  supplemental  act,  held  unconstitutional  in  so  far  as  they 
attempt  to  provide  a  mode  of  fixing  rates  to  be  charged  by  corpora- 
tions in  San  Francisco  differing  from  the  mode  provided  for  other  cor- 
porations by  general  laws.  (San  Francisco  v.  Spring  Valley  W.  W., 
53  Cal.  608;  Spring  Valley  W.  W.  v.  Bryant,  52  Cal.  132;  San  Fran- 
cisco v.  Spring  Valley  w/w.,  48  Cal.  493.) 

An  act  which  authorizes  the  board  of  supervisors  of  a  county  to 
grant  certain  privile_ge3  to  a  particular  corporation  is  void.  (Water- 
loo etc.  Road  Co.  v.  Cole,  51  Cal.  381.) 

An  act  which  grants  to  individuals  powers  and  privileges,  and  pro- 
vides that  the  act  shall  not  take  effect  unless  such  persons  incorporate 
within  a  given  time,  is  a  grant  to  the  corporation,  and  void.  (San 
Francisco  v.  Spring  Valley  W.  W.,  48  Cal.  493.  California  State  Tel. 
Co.  v.  Alta  Tel.  Co.,  22  Cal.  398,  disapproved.) 

Under  this  section  the  legislature  cannot  by  special  act  change  the 
name  of  a  corporation,  but  may  by  general  law  provide  for  such 
change  by  the  superior  court  upon  application  of  the  incorporators. 
(Matter  of  La  Soeiete  Francaise  etc.,  123  Cal.  525,  56  Pac.  458,  787. 
See,  also,  Pacific  Bank  v.  De  Ro,  37  Cal,  538.) 


Art.  XII,  §  1 


CONSTITUTION    OF   1879. 


478 


An  act  granting  to  certain  individuals  the  exclusive  right  to  a  liue 
of  telegrapli  does  not  violate  tliis  section.  (California  State  Tel.  Co. 
V.  Alta  Tel.  Co.,  22  Cal.  398.  But  see  San  rraucisco  v.  Spring  Valley 
W.  W.,  48  Cal.  493.) 

Where  a  franchise  is  conferred  by  the  legislature  to  certain  indi- 
viduals to  supply  a  town  with  water,  and  they  afterward  sell  such 
franchise  to  a  corporation,  this  section  is  not  violated.  (San  Luis 
Water  Co.  v.  Estrada,  117  Cal.  168,  48  Pac.  1075.  San  Francisco  v. 
Spring  Valley  W.  W.,  48  Cal.  493,  distinguished.) 

An  act  conferring  the  power  of  appointing  boards  of  examiners 
vipon  three  named  societies,  which  are  said  to  be  "existing  corpora- 
tions," held  not  to  be  in  conflict  with  this  section,  as  the  power  is  not 
conferred  upon  them  as  corporations — the  expression  "existing  cor- 
porations" being  merely  descriptio  personarum.  (Ex  parte  Frazer,  54 
Cal.  94;  Ex  parte  McNulty,  77  Cal.  164,  11  Am.  St.  Kep.  257,  19  Pac. 
237;  Ex  parte  Johnson,  62^  Cal.  263.) 

This  provision  continued  in  force  section  359  of  the  Code  of  Civil 
Procedure,  limiting  the  time  within  which  an  action 'can  be  brought 
to  enforce  the  stockholders'  personal  liability.  (Santa  Rosa  Nat. 
Bank  v.  Barnett,  125  Cal.  407,  58  Pac.  85.) 

Rights  vesting  under  section  536  of  the  Civil  Code,  which  allows 
telegraph  and  telephone  companies  to  use  rights  of  way  along  waters, 
roads  and  highways,  cannot  be  revoked  under  this  section  of  the  Con- 
stitution. (Western  Union  Tel.  Co.  v.  Hopkins,  160  Cal.  106,  116  Pac. 
557.) 

Visitation. — The  legislature  has  what  may  be  termed  a  visitorial 
or  supervisorial  power  over  corporations,  and  may  examine  info  their 
affairs,  with  a  view  to  correct  corporate  abuses.  (In  re  Bunkers,  1 
Cal.  App.  61,  81  Pac.  748.) 

Alteration  and.  repeal  of  charters. — The  right  to  alter  and  repeal 
is  not  without  limit;  it  must  be  reasonable.  Sheer  oppression  and 
wrong  cannot  be  inflicted  under  the  guise  of  amendment  or  alteration. 
(Spring  Valley  W.  W.  v.  Board  of  Suprs.  of  San  Francisco,  61  Cal.  3.) 

The  power  of  the  legislature  to  alter  and  amend  under  this  section 
does  not  authorize  the  legislature,  while  the  corporation  exists,  to  de- 
prive it  of  the  rights,  guaranteed  to  it  by  the  federal  Constitution,  to 
due  process  of  law,  and  to  the  equal  protection  of  the  laws,  nor  to  alter 
the  charter  of  foreign  corporations  doing  business  in  this  state.  (John- 
son V.  Goodyear  Min.  Co.,  127  Cal.  4,  78  Am.  St.  Rep.  17,  47  L.  R.  A. 
338,  59  Pac.  304.) 

A  provision  in  the  charter  of  a  water  company  permitting  it  to 
name  two  out  of  five  commissioners  to  fix  water  rates  is  simply  a 
privilege,  and  not  a  contract  with  the  company,  and  may  be  repealed 
at  any  time.  (Spring  Valley  W.  W.  v.  Board  of  Suprs.  of  San  Fran- 
cisco, 61  Cal.  3.) 

The  legislature  may,  under  the  reserved  power,  provide  for  the  con- 
solidation of  corporations  by  a  majority  vote  of  the  stockholders, 
without  reference  to  the  will  of  the  dissenting  stockholders.  (Market 
Street  Ry.  Co.  v.  Hellman,  109  Cal.  571,  42  Pac.  225.) 

Under  this  provision  the  people  of  the  state  have  power  to  change 
the  law  as  to  the  liability  of  stockholders.  (McGowan  v.  McDonald, 
111  Cal.  57,  52  Am.  St.  Rep.  149,  43  Pac.  418.) 


479  CORPORATIONS.  -  Art.  XII,  §§  2, 3 

Dues  to  be  secured  by  individual  liability,  etc. 

Sec.  2.  Dues  from  corporations  shall  be  secured  by  such 
individual  liability  of  the  corporators  and  other  means  as 
may  be  prescribed  by  law. 

Stockholders  to  be  individually  liable. 

Sec.  3.  Each  stockholder  of  a  corporation,  or  joint-stock 
association,  shall  be  individually  and  personally  liable  for 
such  proportion  of  all  its  debts  and  liabilities  contracted  or 
incurred,  during  the  time  he  was  a  stockholder,  as  the 
amount  of  stock  or  shares  owned  by  him  bears  to  the  whole 
of  the  subscribed  capital  stock,  or  shares  of  the  corporation 
or  association.  The  directors  or  trustees  of  corporations 
and  joint-stock  associations  shall  be  jointly  and  severally 
liable  to  the  creditors  and  stockholders  for  all  moneys  em- 
bezzled or  misappropriated  by  the  officers  of  such  corpora- 
tion or  joint-stock  association,  during  the  term  of  office  of 
such  director  or  trustee. 

Nothing  in  the  preceding  paragraph  of  this  section  shall 
be  held  to  apply  to  any  exposition  company  organized  to 
promote  and  carry  on  any  international  exposition  or 
world's  fair  within  the  state  of  California,  and  the  liability 
of  stockholders  in  any  such  exposition  company  shall  be 
and  the  same  is  hereby  limited  to  an  amount  not  exceeding 
the  par  value  of  the  stock  of  said  corporation  subscribed 
for  by  such  stockholders.  (Amendment  adopted  Novem- 
ber 3,  1908.) 

[ORIGINAL  SECTION.] 
Sec.  3.  Each  stockholder  of  a  corporation,  or  joint-stock  asso- 
ciation, shall  be  individually  and  personally  liable  for  such  propor- 
tion of  all  its  debts  and  liabilities  contracted  or  incurred,  during 
the  time  he  was  a  stockholder,  as  the  amount  of  stock  or  shares 
owned  by  him  bears  to  the  whole  of  the  subscribed  capital  stock, 
or  shares  of  the  corporation  or  association.  The  directors  or  trus- 
tees of  corporations  and  joint-stock  associations  shall  be  jointly 
and  severally  liable  to  the  creditors  and  stockholders  for  all  moneys 
embezzled  or  misappropriated  by  the  officers  of  such  corporation, 
or  joint-stock  association,  during  the  term  of  office  of  such  director 
or  trustee. 

STOCKHOLDERS'  LIABILITY— In  general.— Under  this  section  a 
stockholder  cannot  be  exempted  by  law  from  his  individual  liability. 
(McUowan  v.  McDonald,  111  Cal.'  57,  52  Am.  St.  Rep.  149,  43  Pac. 
418.) 


Art.  XII,  §  3  CONSTITUTION  OF  1879,  480 

A  somewhat  similar  provision  of  the  former  Constitution  was  held 
not  to  be  self-executing.     (French  v.  Teschemaker,  24  Cal.  518.) 

This  section  is  self-executing,  and  any  attempt  by  the  legislature  to 
limit  its  effect  would  be  beyond  its  constitutional  power,  and  there- 
fore void.  (Western  Pac.  Ey.  Co.  v.  Godfrey,  166  Cal.  346,  Ann.  Cas. 
1915B,  825,  136  Pac.  284.) 

The  word  "stockholder,"  as  used  in  this  section,  is  synonymous  with 
the  term  "owner  of  shares"  as  used  in  section  298  of  the  Civil  Code. 
(Western  Pac.  Ky.  Co.  v.  Godfrey,  166  Cal.  346,  Ann.  Cas.  1915B,  82o, 
136  Pac.  284.) 

The  former  Constitution  left  it  to  the  legislature  to  prescribe  the 
rule  by  which  each  stockholder's  proportion  should  be  ascertained. 
(Larrabee  v.  Baldwin,  35  Cal.   155.) 

Under  the  former  Constitution  it  was  held  that  any  one  creditor, 
whose  debt  was  sufficient,  might  collect  from  one  particular  stock- 
holder the  entire  amount  of  his  liability  on  all  the  corporate  debts, 
leaving  him  to  seek  contribution  out  of  his  costockholders.  (Larra- 
bee V.  Baldwin,  35  Cal.  155.) 

Under  the  former  Constitution  it  was  held  that  a  creditor  could  col- 
lect his  wliole  claim  from  a  single  stockholder,  provided  it  did  not 
exceed  in  amount  the  said  stockholder's  proportion  of  the  corpora- 
tion's entire  indebtedness.  (Gardiner  v.  Bank  of  Napa,  160  Cal.  577, 
117  Pac.  667.) 

Under  the  present  Constitution  and  section  322  of  the  Civil  Code, 
a  single  stockholder  is  liable  to  a  single  creditor  for  his  proportion 
only  of  that  creditor's  debt,  and  the  creditor  has  no  right  to  collect 
upon  his  individual  claim  a  sum  equal  to  the  stockholder's  entire  lia- 
bility upon  the  debts  of  the  corporation.  (Gardiner  v.  Bank  of  Napa, 
160  Cal.  577,  117  Pac.  667.) 

"All"  the  debts  means  every  debt  of  the  company;  and  therefore 
any  creditor  is  entitled  to  sue  any  stockholder  for  his  proportion  of 
the  indebtedness  of  the  company  to  such  creditor,  without  reference 
to  the  other  debts  of  the  corporation.  (Morrow  v.  Superior  Court,  64 
Cal.  383,  1  Pac.  354.) 

This  provision  does  not  apply  to  stockholders  of  a  foreign  corpora- 
tion doing  business  in  California,  where  its  charter  exempts  its  stock- 
holders from  liability  for  its  debts.  (Thomas  v.  Matthiessen,  192  Fed. 
495,  113  C.  C.  A.  101;  affirming  170  Fed.  362.) 

Section  322  of  the  Civil  Code,  providing  the  manner  for  enforcing 
the  rights  of  a  creditor  of  a  corporation  against  a  stockholder,  does 
not  conflict  with  this  section  of  the  Constitution.  (Gardiner  v.  Bank 
of  Napa,  160  Cal.  577,  117  Pac.  667.) 

An  act  authorizing  the  formation  of  corporations,  without  attach- 
ing to  the  stockholders  an  individual  liability  would  be  unconstitu- 
tional, and  the  persons  organized  under  such  an  act  would  acquire 
none  of  the  rights  of  a  corporation.  (French  v.  Teschemaker,  24  Cal. 
518.) 

A  contract  between  a  corporation  and  its  stockholders  embodied  in 
its  articles  of  incorporation  and  expressed  in  its  certificate,  that  its 
capital  stock  shall  not  be  assessed  after  it  is  paid  in  full,  is  not  in- 
consistent with  this  provision.  (Lum  v.  American  Wheel  etc.  Co.,  165 
Cal.  657,  Ann.  Cas.  19I5A,  816,  133  Pac.  303.) 


481  CORPORATIONS.  Art.  XII,  §  3 

But  the  creditors  of  a  corporation  may  waive  the  personal  liability 
of  the  stockholders  at  the  time  of  contracting  with  the  corporation. 
(French  v.  Tesehemaker,  24  Cal.  518.) 

A  depositor  in  a  savings  bank  does  not  waive  the  personal  liability 
of  the  stockholders  by  an  unsigned  agreement  printed  in  the  book  of 
each  depositor,  nor  by  a  printed  release  of  liability  inserted  in  the 
signature-book,  to  which  no  special  subscription  was  made  by  the 
depositors.  (Wells  v.  Black,  117  Gal.  157,  59  Am.  St.  Eep.  162,  37 
L.  E.  A.  619,  48  Pac.  1090.) 

A  by-law  of  a  corporation  that  the  stockholders  shall  not  be  person- 
ally liable  for  the  debts  of  the  corporation  is  void.  (Wells  v.  Black, 
117  Cal.  157,  59  Am.  St.  Rep.  162,  37  L.  R.  A.  619,  48  Pac.  1090.) 

A  law  limiting  the  time  within  which  an  action  can  be  brought  un- 
der this  section  to  three  years  from  the  creation  of  the  liability  is 
valicT.  (Santa  Rosa  Nat.  Bank  v.  Barnett,  125  Cal.  407,  58  Pac.  85; 
Gardiner  v.  Royer,  167  Cal.  238,  139  Pac.  75;  Royal  Trust  Co.  v.  Mac- 
Bean,  168  Cal.  642,  144  Pac.  139.) 

An  act  authorizing  a  city  to  subscribe  to  the  stock  of  a  corporation, 
provided  the  corporation  should  make  it  a  condition  of  all  contracts 
entered  into  by  it  that  the  city  should  not  be  liable  as  a  stockholder, 
is  not  invalid  as  taking  away  the  liability  fixed  by  the  Constitution. 
(French  v.  Tesehemaker,  24  Cal.  518.) 

One  stockholder  may  enforce  the  personal  liability  of  other  stock- 
holders in  the  corporation  for  a  debt  due  such  stockholder  from  the 
corporation.  (Brown  v.  Merrill,  107  Cal.  446,  48  Am.  St.  Rep.  145,  40 
Pac.  557;  Knowles  v.  Sandercock,  107  Cal.  629,  40  Pac.  1047.) 

This  provision  applies  to  corporations  formed  before  as  well  as  after 
the  adoption  of  the  new  Constitution.  (McGowan  v.  McDonald,  111 
Cal.  57,  52  Am.  St.  Rep.  149,  43  Pac.  418.) 

Under  a  like  provision  in  the  Constitution  of  Kansas  it  was  held 
that  it  was  enforceable  in  this  state  against  California  stockholders 
in  a  Kansas  corporation.  (Ferguson  v.  Sherman,  116  Cal.  1C9,  37 
L,  R.  A.  622,  47  Pac.  1023.) 

Liability  of  stockholders.     See  notes,  9  Am.  Dee.  96;  49  Am.  Dec. 

308. 
Liability   of  stockholders   to   creditors   of  corporation.     See   note, 

3  Am.  St.  Rep.  806. 
Liability  of  purchasers  of  stock  from  corporation  at  less  than  par 

to  creditors  of  corporation.     See  note,  5  Ann.  Cas.  667. 
Liability  as  stockholder  of  transferrer  of  stock  where  transfer  is 

not  entered  on  books.     See  note,  14  Ann.  Gas.  898. 
Stockliolder's  liability.     See  7  R.  C,  L.,  §§332-409,  pp.  352-421. 

When  it  attaches. — This  section  has  no  application  to  liabilities  of 
stockholders  which  accrued  prior  to  its  adoption.  (Harmon  v.  Page, 
62  Cal.  448.) 

A  subscriber  for  shares  is  responsible  as  a  stockholder,  although  ha 
has  not  paid  for  his  stock  or  received  a  certificate  therefor,  (Mitchell 
V.  Beckman,  64  Cal.  117,  28  Pac.  110.) 

The  sale  of  stock  by  a  stockholder  would  under  no  circumstances 
release  his  personal  or  individual  liability  for  his  proper  proportion 
Constitution — 31 


Art.  XII,  §  3 


CONSTITUTION    OF   1879. 


482 


of  all  its  debts  and  liabilities  contracted  or  incurred  during  the  time 
he  was  a  stockholder.  (People  v.  California  Safe  Deposit  &  T.  Co., 
18  Cal.  App.  732,  124  Pac.  558.) 

A  pledgee  of  stock  is  not  a  stockholder  within  the  meaning  of  this 
section.  (Borland  v.  Nevada  Bank,  99  Cal.  89,  37  Am.  St.  Rep.  32, 
33  Pac.  737.) 

Liability  of  holders  of  stock  as  collateral  for  debts  of  corporation. 
See  notes,  1  Am.  St.  Rep.  783;  68  Am.  St.  Rep.  542;   121  Am. 
St.  Rep.  197;  10  Ann.  Cas.  783, 
Liability  of  transferee  of  stock  for  corporate  debts.     See  notes, 

3  Ann.  Cas.  1120;  Ann.  Cas.  1914B,  754. 
Liability  for  corporate  debts  of  stockholder  who  transfers  stock 
to  escape  liability.     See  notes,  6  Ann.  Cas.  428;   18  Ann.  Cas. 
341. 

As  to  who  is  a  stockholder  under  this  section,  see  Abbott  v.  Jack, 
136  Cal.  510,  69  Pac.  257. 

The  liability  of  the  stockholder  is  dependent  upon  the  fact  that  he 
is  a  stockholder  at  the  time  the  debt  is  created,  and  such  liability 
cannot  be  extended  by  the  corporation  by  a  note  given  for  an  indebt- 
edness not  created  while  he  was  a  stockholder,  by  suffering  a  judg- 
ment to  be  recovered  on  such  indebtedness,  or  in  any  other  manner. 
(Winona  Wagon  Co.  v.  Bull,  108  Cal.  1,  40  Pac.  1077;  Larrabee  v. 
Baldwin,  35  Cal.  155;  Danielson  v.  Yoakum,  116  Cal.  382,  48  Pac.  322; 
Partridge  v.  Butler,  113  Cal.  326,  45  Pac.  678;  Santa  Rosa  Nat.  Bank 
V.  Barnett,  125  Cal.  407,  58  Pac.  85.) 

The  liability  of  a  stockholder  in  a  savings  bank  accrues  at  the  time 
of  the  acceptance  of  the  deposit.  (Wells  v.  Black,  117  Cal.  157,  59 
Am.  St.  Eep.  162,  37  L.  R.  A.  619,  48  Pac.  1090.) 

A  stockholder  in  a  savings  bank  is  liable  for  his  proportion  of  a 
deposit  in  such  bank.  (Wells  v.  Black,  117  Cal.  157,  59  Am.  St.  Rep. 
162,  37  L.  R.  A.  619,  48  Pac.  1090.) 

A  liability  for  overdrafts  to  a  bank  is  created  upon  the  daily  bal- 
ances against  the  corporation  shown  by  the  account.  (Santa  Rosa 
Nat.  Bank  v.  Barnett,  125  Cal.  407,  58  Pac.  85.) 

The  liability  of  a  corporation  for  the  services  of  an  attorney  is  not 
created  until  the  rendition  of  the  services.  (Johnson  v.  Bank  of  Lake, 
125  Cal.  6,  73  Am.  St.  Rep.  17,  57  Pac.  664.) 

Where  an  accommodation  indorser  of  the  note  of  a  corporation  pays 
the  same,  the  debt  is  extinguished  and  the  stockholder's  liability  upon 
the  debt  comes  to  an  end,  and  neither  under  the  doctrine  of  equitable 
assignment  nor  of  subrogation  can  it  be  transferred  as  a  live  and  sub- 
sisting obligation,  but  at  the  time  of  payment  by  the  indorser  a  new 
liability  springs  up  against  the  corporation  and  its  stockholders,  a 
liability  upon  an  implied  contract  to  reimburse  what  has  been  ex- 
pended, including  costs  and  expenses.  (Yule  v.  Bishop,  133  Cal.  574, 
65  Pac.  1094.) 

The  legatee  of  shares  of  stock  in  a  corporation  who,  upon  distribu- 
tion of  the  estate,  accepts  such  legacy,  is  answerable  to  the  creditors 
of  the  corporation  upon  a  stockholder's  liability  for  corporate  debts 
contracted  after  the  death  of  the  decedent,  but  before  distribution  of 


483  CORPORATIONS.  Art.  XII,  §  3 

the  estate.     (Western  Pacific  Ey.  Co.  v.  Godfrey,  166  Cal.  346,  Ann 
Cas.  1915B,  825,  136  Pac.  284.) 

Nature  of. — An  action  to  recover  upon  the  liability  of  a  stockholder 
is  an  action  at  law.  (Morrow  v,  Superior  Court,  64  Cal.  383,  1  Pac. 
354.) 

A  stockholder's  liability  is  a  "liability  created  by  law."  (Moore  v. 
Boyd,  74  Cal.  167,  15  Pac.  670;  Hunt  v.  Ward,  99  Cal.  612,  37  Am.  St. 
Hep.  87,  34  Pac.  335.) 

It  is  also  a  liability  created  by  statute.  (Bank  of  San  Luis  Obispo 
V.  Pacific  Coast  S.  S.  Co.,  103  Cal.  594,  37  Pac.  499.) 

It  is  also  an  obligation  arising  upon  contract.  (Dennis  v.  Superior 
Court,  91  Cal.  548,  27  Pac.  1031;  Kennedy  v.  California  Sav.  Bank,  97 
Cal.  93,  33  Am.  St.  Rep.  163,  31  Pac.  846.) 

The  liability  of  a  stockholder  of  a  corporation  for  his  proportionate 
share  of  its  debts  is  created  by  statute  and  barred  within  three  years 
after  the  cause  of  action  accrues.  (.Jones  v.  Goldtree  Bros.  Co.,  142 
Cal.  383,  77  Pac.  939.) 

The  obligation  of  stockholders  is  direct  and  primary.  They  are 
principal  debtors,  and  not  sureties  of  the  corporation,  and  their  lia- 
bility is  not  contingent  upon  a  recovery  against  the  corporation,  nor 
is  it  affected  by  a  suspension  or  renewal  as  to  the  corporation.  (Fay- 
monville  v.  McCollough,  59  Cal.  285;  Davidson  v.  Rankin,  34  Cal.  503; 
Hyman  v.  Coleman,  82  Cal.  6o0,  16  Am.  St.  Rep.  178,  23  Pac.  62;  Mit- 
chell V.  Beckman,  64  Cal.  117,  28  Pac.  110;  Dolbear  v.  Foreign  Mines 
Development  Co.,  196  Fed.  646,  116  C.  C.  A.  338.) 

Stockholders  are  not  jointly  and  severally  liable,  but  each  stock- 
holder is  severally  liable  for  his  proportion  of  the  indebtedness,  and 
when  he  has  paid  his  portion  of  any  debt,  or  of  all  the  debts  of  the 
corporation,  he  is  freed  from  all  liability,  and  has  no  cause  of  action 
against  any  other  stockholder  for  money  so  paid.  (Brown  v.  Merrill 
107  Cal.  446,  48  Am.  St,  Rep.  145,  40  Pac.  557;  Derby  v.  Stevens,  64 
Cal.  287,  30  Pac.  820.) 

The  mere  fact  that  the  corporation  has  pledged  to  the  debtor  cer- 
tain property  as  security  for  the  debt  does  not  prevent  the  debtor 
from  suing  the  stockholders.  (Sonoma  Valley  Bank  v.  Hill,  59  Cal. 
107.) 

A  judgment  against  the  corporation  does  not  extinguish,  suspend  or 
merge  the  liability  of  the  stockholders.  (Young  v.  Rosenbaura  39 
Cal.  646.) 

Nor  does  such  a  judgment  prolong  the  time  within  which  an  action 
may  be  maintained  against  the  stockholders.  (Stilphen  v  Ware  45 
Cal.  110.)  ' 

An  action  may  be  maintained  against  the  stockholders,  although 
the  debt  is  secured  by  a  mortgage  of  the  corporation  which  has  not 
been  foreclosed.  (Knowles  v.  Sandercock,  107  Cal.  629,  40  Pac.  1047- 
Dolbear  v.  Foreign  Mines  Development  Co.,  196  Fed.  646,  116  CCA 
338.) 

Stockholders  are  liable  for  interest  as  well  as  principal.  (Wells, 
Fargo  &  Co.  v.  Enright,  127  Cal.  669,  49  L.  R.  A.  647,  60  Pac.  439.) 

A  stockholder  of  an  insolvent  bank  has  no  right  to  share  in  the 
dividends  of  the  bank  by  way  of  subrogation  to  the  rights  of  a  credi- 


Art.  XII,  §  3  CONSTITUTION  OF  1879.  484 

tor  to  whom  he  has  paid  his  proportionate  share  of  his  claim.  (Sac- 
ramento Bank  v.  Pacific  Bank,  124  Cal.  147,  71  Am.  St.  Rep.  36,  45 
L.  R.  A.  863,  56  Pac.  787.) 

Nature  of  stockholder's  liability  for  debts  of  corporation.  See 
note,  99  Am.  Dec.  432. 

Release  of. — Whenever  a  debt  of  a  corporation  is  satisfied  in  part, 
there  is  also  pro  tanto  a  discharge  of  the  liability  of  the  stockholders. 
(San  Jose  Sav.  Bank  v.  Pharis,  58  Cal.  380.) 

Where  a  creditor  of  a  corporation  releases  a  stockholder  from  all 
personal  liability,  he  thereby  discharges  the  corporation  and  other 
stockholders  to  the  same  extent  as  the  one  to  whom  the  release  is  exe- 
cuted. If  the  release  is  for  the  releasee's  proportion,  the  company 
and  other  stockholders  are  only  released  pro  tanto.  (Prince  v.  Lynch, 
38  Cal.  528,  99  Am.  Dee.  427.) 

Practice. — A  complaint  to  recover  on  the  stockholder's  liability 
must  state  the  amount  of  the  whole  number  of  shares  subscribed  for. 
(Bidwell  V.  Babcock,  87  Cal.  29,  25  Pac.  752;  Roebling's  Sons  Co.  v. 
Butler,  112  Cal.  677,  45  Pac.  6.) 

As  to  the  form  of  the  complaint  generally,  see  Duke  v.  Hurtingt^n, 
130  Cal.  272,  62  Pac.  510;  Whitehurst  v.  Stuart,  129  Cal.  194,  61  Pac. 
963. 

The  complaint  must  show  affirmatively  that  the  defendant  was  a 
stockholder  when  the  debt  was  incurred,  and  a  mere  allegation  that 
he  was  a  stockholder  when  the  note  was  executed  is  insufficient. 
(Case  Plow  Works  v.  Montgomery,  115  Cal.  380,  47  Pac.  108.) 

A  complaint  in  an  action  against  stockholders  to  recover  their  pro- 
portionate share  of  the  debts  of  the  corporation,  which  does  not  aver 
the  whole  number  of  shares  of  the  subscribed  capital  stock,  is  fatally 
defective.  (San  Francisco  etc.  Agency  v.  Miller,  4  Cal.  App.  291,  87 
Pac.  630.) 

An  allegation  of  the  number  of  shares  issued  is  not  sufficient  to 
show  the  amount  subscribed.  (San  Francisco  etc.  Agency  v.  Miller, 
4  Cal.  App.  291,  87  Pac.  630.) 

A  creditor  is  not  bound  to  exhaust  the  remedies  against  the  cor- 
poration before  proceeding  against  the  stockholder.  (Morrow  v.  Su- 
perior Court,  64  Cal.  383,  1  Pac.  354.) 

Necessity  of  exhausting  remedy  against  corporation  before  en- 
forcing stockholder's  liability.  See  notes,  2  Ann.  Cas.  28;  16 
Ann.  Cas.  1152. 

The  provisions  of  this  section  do  not  oust  a  court  of  equity  of  jur's- 
diction  to  compel  stockholders  to  pay  for  the  benefit  of  creditors  the 
amount  of  the  capital  stock  subscribed  for  by  him.  (Harmon  v.  Page, 
62  Cal.  448.) 

Although  the  liability  of  the  stockholder  is  that  of  an  original 
debtor,  it  is  proper  to  plead  the  debt  as  that  of  the  corporation. 
(Knowles  v.  Sandercock,  107  Cal.  629,  40  Pac.  1047.) 

Where  one  stockholder  pays  a  note  nf  the  corporation,  and  sues  the 
other  stockholders  for  contribution,  the  superior  court  has  no  juris- 
diction, if   the   several   amounts   asked   against   each   stockholder   are 


485  CORPORATIONS.  Art.  XII,  §  3 

less  than  three  hundred  dollars.     (Myera  v.  Sierra  Valley  Stock  etc. 
Co.,  122  Cal.  669,  55  Pac.  689.) 

Enforcement  of  stockholder's  liability  in  other  states.     See  note, 
37  Am.  St.  Rep,  168. 

Actions  against  stockholders  for  debts  of  corporation.     See  note, 
43  Am.  Dec.  694. 

LIABILITY  OF  DIRECTORS.— This  provision  only  applies  to  such 
misappropriations  of  moneys  as  are  similar  to  embezzlement,  consist- 
ing of  the  misappropriations  of  funds  intrusted  to  an  officer  for  a  par- 
ticular purpose,  by  devoting  them  to  some  unauthorized  purpose,  and 
does  not  apply  to  the  payment  of  an  extravagant  price  for  services  or 
materials  properly  appertaining  to  the  business  of  the  corporation. 
(Pox  V.  Hale  &  Noreross  etc.  Min.  Co.,  108  Cal.  369,  41  Pac.  308.) 

Liability  must  be  strictly  limited  to  money  misappropriated  by  the 
officer.  (Hercules  Oil  etc.  Co.  v.  Hocknell,  5  Cal.  App.  702,  91  Pac. 
341.) 

An  action  at  law  on  behalf  of  one  or  more  of  the  creditors  of  a  cor- 
poration cannot  be  sustained  under  the  provision  as  to  the  liability 
of  directors,  but  the  only  proper  remedy  is  a  bill  in  equity  where  all 
the  creditors  are  parties,  or  are  represented,  and  in  which  there  can  b;; 
an  accounting  after  ascertainment  of  facts.  (Winchester  v.  Mabury, 
122  Cal.  522,  55  Pac.  393.) 

The  provision  of  this  section  as  to  the  liability  of  directors  and 
trustees  is  self-executing.  (Winchester  v.  Howard,  136  Cal.  432,  89 
Am.  St.  Eep.  153,  64  Pac.  692,  69  Pac.  77.) 

The  proper  remedy  for  the  enforcement  of  this  provision  against 
directors  and  trustees  is  by  bill  in  equity.  (Winchester  v.  Howard, 
136  Cal.  432,  89  Am.  St.  Rep.  153,  64  Pac.  692,  69  Pac.  77.) 

This  provision  is  not  in  violation  of  the  federal  Constitution. 
(Winchester  v.  Howard,  136  Cal.  432,  89  Am.  St.  Rep.  153,  64  Pac.  692, 
69  Pac.  77.) 

An  assignee  of  a  depositor  in  a  bank  may  maintain  an  action  under 
this  section.  (Winchester  v.  Howard,  136  Cal.  432,  89  Am.  St.  Eep. 
153,  64  Pac.  692,  69  Pac.  77.) 

Depositors  who  became  such  after  the  misappropriation  may  main- 
tain the  action.  (Winchester  v.  Howard,  136  Cal.  432,  89  Am.  St. 
Rep.  153,  64  Pac.  692,  69  Pac.  77.) 

The  claim  of  the  creditor  need  not  be  reduced  to  judgmeut  before 
an  action  is  brought  under  this  provision.  (Winchester  v.  Howard, 
136  Cal.  432,  89  Am.  St.  Rep.  153,  64  Pac.  692,  69  Pac.  77.) 

Nor  need  he  make  a  specific  demand  for  an  accounting  before 
bringing  the  action.  (Winchester  v.  Howard,  136  Cal.  432,  89  Am.  St. 
Rep.    153,    64    Pac.    692,    69    Pac.    77.) 

When  a  creditor  brings  an  action  under  this  section  on  behalf  of 
himself  and  all  other  creditors,  he  becomes  a  trustee  for  them  as  to 
any  amount  recovered  or  received  in  settlement.  (Niccolls  v.  Rice, 
147  Cal.  633,  82  Pac.  321.) 

When  a  creditor  brings  an  action  under  this  section  in  his  own  be- 
half and  in  behalf  of  all  other  creditors  who  may  join  with  him,  he 
does  not  become  a  trustee  as  to  a  creditor  who  never  did  join.  (Nic- 
colls V,  Rice,  147  Cal.  633,  82  Pac.  321.) 


Art.  XII,  §§  4,  5     CONSTITUTION   OF   1879.  486 

An  action  begun  for  the  enforcement  of  the  liability  of  a  director 
of  a  corporation  survives  the  death  of  said  director.  (Major  v. 
Walker,  23  Cal.  App.  465,  138  Pac.  360.) 

An  action  at  law  on  behalf  of  one  or  more  of  the  creditors  of  a 
corporation  cannot  be  sustained  under  the  provision  as  to  the  liabil- 
ity of  directors,  but  the  only  proper  remedy  is  a  bill  in  equity  where 
all  the  creditors  are  parties,  or  are  represented,  and  in  which  there  can 
be  an  accounting  after  ascertainment  of  facts.  (Gardiner  v.  Bank  of 
Napa,  160  Cal.  577,  117  Pac.  667.) 

Corporations  construed. 

Sec.  4.  The  term  corporations,  as  used  in  this  article, 
shall  be  construed  to  include  all  associations  and  joint- 
stock  companies  having  any  of  the  powers  or  privileges  of 
corporations  not  possessed  by  individuals  or  partnerships; 
and  all  corporations  shall  have  the  right  to  sue  and  shall 
be  subject  to  be  sued,  in  all  courts,  in  like  cases  as  natural 
persons. 

Banking-  prohibited. 

Sec.  5.  The  legislature  shall  have  no  power  to  pass  any 
act  granting  any  charter  for  banking  purposes,  but  corpo- 
rations or  associations  may  be  formed  for  such  purposes 
under  general  laws,  and  the  legislature  shall  provide  for 
the  classification  of  cities  and  towns  by  population  for  the 
purpose  of  regulating  the  business  of  banking.  No  cor- 
poration, association,  or  individual  shall  issue  or  put  in  cir- 
culation, as  money,  anything  but  the  lawful  money  of  the 
United  States.     (Amendment  adopted  November  8,  1910.) 

[OKIGINAL  SECTION.] 
Sec.  5.  The  legislature  shall  have  no  power  to  pass  any  act 
granting  any  charter  for  banking  purposes,  but  corporitions  or 
associations  may  be  formed  for  such  purposes  under  general  laws. 
No  corporation,  association,  or  individual  shall  issue  or  put  in  cir- 
culation, as  money,  anything  but  the  lawful  money  of  the  United 
States. 

BANKING  CORPORATIONS.— A  corporation  may  be  formed  for 
the  purpose  of  receiving  deposits  and  loaning  money,  and  if  it  does 
not  issue  paper  to  circulate  as  money,  it  is  not  a  bank,  although  it  is 
called  such.     (Bank  of  Sonoma  v.  Fairbanks,  52  Cal.  196.) 

Sections  34  and  35,  article  IV,  of  the  Constitution  of  1849  did  not 
prohibit  the  formation  of  banking  corporations  for  the  purpose  of 
deposit  and  loan,  which  do  not  issue  paper  to  circulate  as  money. 
(Bank  of  Martinez  v.  Hemme  etc.  Land  Co.,  105  Cal.  376,  38  Pac. 
963.) 


487  CORPORATIONS.  Art.  XII,  §§6,7 

Existing-  charters,  when  invalid. 

Sec.  6.  All  existing  charters,  grants,  franchises,  special 
or  exclusive  privileges,  under  which  an  actual  and  bona 
fide  organization  shall  not  have  taken  place,  and  business 
been  commenced  in  good  faith,  at  the  time  of  the  adoption 
of  this  Constitution,  shall  thereafter  have  no  validity. 

EXISTING  FKANCHISES. — This  section  in  no  way  repeals  or  af- 
fects section  536  of  the  Civil  Code,  which  allows  telegraph  and  tele- 
phone companies  to  use  rights  of  way  along  waters,  roads  and  high- 
ways. (Western  Union  Tel.  Co.  v.  Hopkins,  160  Cal.  106,  116  Pac. 
557.) 

Charters  not  to  be  extended,  nor  forfeiture  remitted. 

Sec.  7.  The  legislature  shall  not  extend  any  franchise  or 
charter,  nor  remit  the  forfeiture  of  any  franchise  or  charter 
of  any  quasi-public  corporation  now  existing  or  which  shall 
hereafter  exist  under  the  laws  of  this  state.  The  term  of 
existence  of  any  other  corporation  now  or  hereafter  existing 
under  the  laws  of  this  state,  may  be  extended,  at  any  time 
prior  to  the  expiration  of  its  corporate  existence,  for  a 
period  not  exceeding  fifty  years  from  the  date  of  such  ex- 
tension, by  the  vote  or  written  consent  of  stockholders  rep- 
resenting two-thirds  of  its  capital  stock  or  of  two-thirds  of 
the  members  thereof.  A  certificate  of  such  vote  or  consent 
shall  be  signed  and  sworn  to  by  the  president  and  secre- 
tary, and  by  a  majority  of  the  directors  of  the  corporation 
and  filed  and  certified  in  the  manner  and  upon  payment  of 
fees  required  by  law  for  filing  and  certifying  articles  of  in- 
corporation, and  thereupon  the  term  of  the  corporation 
shall  be  extended  for  the  period  specified  in  such  certifi- 
cate, and  such  corporation  shall  thereafter  pay  all  annual 
or  other  fees  required  by  law  to  be  paid  by  corporations. 
(Amendment  adopted  November  3,  1908.) 

[ORIGINAL  SECTION.] 
Sec.  7.     The  legislature  shall  not  extend  any  franchise  or  char- 
ter, nor  remit  the   forfeiture   of  any  franchise   or  charter  of  any 
corporation  now  existing,  or  which  shall  hereafter  exist  under  the 
laws  of  this  state. 

CORPORATE  FRANCHISES.— An  act  waiving  a  right  to  enforce 
a  forfeiture  does  not  "remit  the  forfeiture,"  since  there  is  no  forfeit- 
ure until  the  sovereignty  which  created  the  franchise,  by  proper  pro- 


Art.  XII,  §§  8,  9     CONSTITUTION   OF  1879.  488 

ceeding  in  a  proper  court,  procure  an  adjudication  of  forfeiture,  and 
e'nforce  it.  (People  v.  Los  Angeles  etc.  By.  Co.,  91  Cal.  338,  27  Pac. 
673.) 

The  amendment  of  1907  to  section  401,  Civil  Code,  allowing  corpo- 
rations to  extend  the  term  of  their  corporate  existence  not  exceeding 
fifty  years  from  the  date  of  such  extension,  is  in  conflict  with  tliis 
section.     (Boca  Mill  Co.  v.  Curry,  154  Cal.  326,  97  Pac.  1117.) 

Extension  of  life  of  corporation  as  continuation  of  old  or  crea- 
tion of  new  corporation.     See  note,  Ann.  Cas.  1914B,  390. 

All  franchises  subject  to  the  right  of  eminent  domain. 

Sec.  8.  The  exercise  of  the  right  of  eminent  domain  shall 
never  be  so  abridged  or  construed  as  to  prevent  the  legis- 
lature from  taking  the  property  and  franchises  of  incor- 
porated companies  and  subjecting  them  to  public  use  the 
same  as  the  property  of  individuals,  and  the  exercise  of  the 
police  power  of  the  state  shall  never  be  so  abridged  or 
construed  as  to  permit  corporations  to  conduct  their  busi- 
ness in  such  a  manner  as  to  infringe  the  rights  of  individ- 
uals or  the  general  well-being  of  the  state. 

Restrictions  on  powers  of  corporations. 

Sec.  9.  No  corporation  shall  engage  in  any  business  other 
than  that  expressly  authorized  in  its  charter,  or  the  law 
under  which  it  may  have  been  or  may  hereafter  be  organ- 
ized; nor  shall  it  hold  for  a  longer  period  than  five  years 
any  real  estate  except  such  as  may  be  necessary  for  carrying 
on  its  business. 

CORPORATE  PURPOSES. — A  corporation  is  forbidden  to  engage 
in  any  business  other  than  is  exj^ressly  authorized  in  its  charter  or 
the  law  under  which  it  is  organized.  To  hold  stock  in  another  cor- 
poration is  to  engage  in  the  business  of  such  corporation.  (Knowles 
V.  Sandercock,  107  Cal.  629,  643,  40  Pac.  1047.) 

This  section  does  not  cause  property  held  in  violation  of  it  to 
escheat  to  the  state.  (People  v.  Stockton  Sav.  etc.  Soc,  133  Cal.  611, 
85  Am.  St.  Eep.  225,  65  Pac.  1078.) 

While  this  provision  is  mandatory  and  prohibitory,  it  is  not  so  self- 
executing  as  to  deny  the  power  of  the  legislature  to  prescribe  penal- 
ties for  its  violation.  (People  v.  Stockton  Sav.  etc.  Soc,  133  Cal. 
611,  85  Am.  St.  Eep.  225,  65  Pac.  1078.) 

The  mere  fact  that  a  bank  is  forbidden  to  take  an  assignment  of 
a  certificate  of  redemption  does  not  invalidate  the  assignment  in 
favor  of  a  third  person.  (Youd  v.  German  Sav.  &  Loan  Soc,  3  Cal. 
App.  706,  86  Pac  991.) 


189  CORPORATIONS.  Art.  XII,  §§  10, 11 

Liabilities  of  franchise  under  lease  or  grant. 

Sec.  10.  The  legislature  shall  not  pass  any  laws  permit- 
ting the  leasing  or  alienation  of  any  franchise,  so  as  to  re- 
lieve the  franchise  or  property  held  thereunder  from  the 
liabilities  of  the  lessor  or  grantor,  lessee  or  grantee,  con- 
tracted or  incurred  in  the  operation,  use,  or  enjoyment  of 
such  franchise,  or  any  of  its  privileges. 

ALIENATION  OF  FRANCHISES.— This  section  does  not  give  a 
personal  action  against  the  corporation  which  owned  property  for  an 
injury  which  has  resulted  to  an  employee  of  a  lessee  of  the  owner  in 
the  use  of  the  property  in  the  hands  of  the  lessee,  but  is  designed  to 
subject  the  franchise  and  property  to  liability  incurred  in  its  occu- 
pation, whether  the  franchise  be  exercised  or  the  property  be  used 
by  the  original  owner  or  the  lessee  or  grantee.  (Lee  v.  Southern 
Pae.  E.  K.  Co.,  116  Cal.  97,  58  Am.  St.  Rep.  140,  38  L.  R.  A.  71,  47 
Pac.  932.) 

The  transfer  of  a  franchise  by  a  water  company  is  not  prohibited 
by  this  section,  which  only  forbids  the  transfer  of  a  franchise  "so 
as  to  relieve  the  franchise  or  property  held  thereunder"  from  liabili- 
ties incurred  in  its  operation.  Validity  of  section  361a,  Civil  Code, 
upheld.  (South  Pasadena  v.  Pasadena  Land  etc.  Co.,  152  Cal.  579, 
93  Pac.  490.) 

Corporation  stock,  restriction  on  issue  of. 

Sec.  11.  No  corporation  shall  issue  stock  or  bonds,  ex- 
cept for  money  paid,  labor  done,  or  property  actually  re- 
ceived, and  all  fictitious  increase  of  stock  or  indebtedness 
shall  be  void.  The  stock  and  bonded  indebtedness  of  cor- 
porations shall  not  be  increased  except  in  pursuance  of 
general  law,  nor  without  the  consent  of  the  persons  holding 
the  larger  amount  in  value  of  the  stock,  at  a  meeting  called 
for  that  purpose,  giving  sixty  days'  public  notice,  as  may 
be  provided  by  law. 

CORPORATE  STOCK. — An  increase  of  the  capital  etock  of  a  cor- 
poration and  the  issuing  of  additional  shares,  to  be  sold  at  a  price 
less  than  the  nominal  par  value  of  the  stock,  to  supply  a  fund  actu- 
ally required  for  the  use  of  the  corporation,  is  not  a  fictitious  issu- 
ance.    (Stein  V.  Howard,  65  Cal.  616,  4  Pac.  662.) 

Non-negotiable  notes  secured  by  mortgages  executed  by  a  corpora- 
tion do  not  constitute  "bonded  indebtedness"  within  the  meaning  of 
this  section.  (Underhill  v.  Santa  Barbara  etc.  Imp.  Co.,  93  Cal.  300, 
28  Pac.  1049.) 

This  provision  is  mandatory  and  not  merely  directory.  (Navajo 
Min.  etc.  Co.  v,  Curry,  147  Cal.  581,  109  Am.  St.  Rep.  176,  82  Pac. 
247.) 


Art.  XII,  §  12  CONSTITUTION  OF  1879.  490 

The  requirement  of  sixty  days'  notice  of  stockholders'  meeting  can- 
not be  waived  by  the  stockholders,  and  the  fact  that  all  the  stock- 
holders attended  and  voted  for  the  increase  is  immaterial.  (Navajo 
Min.  etc.  Co.  v.  Curry,  147  Cal.  581,  109  Am,  St.  Rep.  176,  82  Pae. 
247.) 

It  is  legitimate  for  a  corporation  to  dispose  of  its  stock  for  full 
value  received  in  land,  property  or  services.  (Turner  v.  Fidelity 
Loan  Concern,  2  Cal.  App.  122,  83  Pae.  62,  70.) 

When  a  corporation  issues  stock  for  property  or  services,  the  pre- 
sumption is  that  the  transaction  was  fair  until  the  contrary  is  shown. 
(Turner  v.  Fidelity  Loan  Concern,  2  Cal.  App.  122,  83  Pae.  62,  70.) 

The  issue  of  stock  as  fully  paid  up  to  the  stockholders  of  a  corpo- 
ration formed  to  take  over  partnership  assets  and  hold  the  same  as 
trustee  for  the  stockholders  is  not  unlawful.  (Baldwin  v.  Miller  & 
Lux,  152  Cal.  454,  92  Pae.  1030.) 

The  procedure  provided  by  the  Constitution  for  an  increase  of  the 
bonded  indebtedness  of  a  corporation  is  not  applicable  to  the  original 
creation  of  a  bonded  debt.  (Merced  River  Electric  Co.  v.  Curry,  157 
Cal.  727,  109  Pae.  264.) 

The  procedure  provided  by  the  Constitution  for  an  increase  of  the 
bonded  indebtedness  of  a  corporation  is  not  applicable  to  the  original 
creation  of  a  bonded  debt.  (McKee  v.  Title  Ins.  etc.  Co.,  159  Cal. 
206,  113  Pae.  140.) 

The  provision  of  this  section  declaring  "all  fictitious  increase  of 
stock  or  indebtedness"  void  does  not  forbid  the  sale  of  bonds  at  a  dis- 
count.    (McKee  v.  Title  Ins.  etc.  Co.,  159  Cal.  206,  113  Pae.  140.) 

This  section  does  not  mean  that  the  consideration  expressed  should 
be  of  equal  value  with  the  stock  issued,  so  long  as  the  transaction  is 
a  real  one,  based  upon  a  present  consideration,  and  having  reference 
to  legitimate  corporate  purposes.  (California  Trona  Co.  v.  Wilkin- 
son, 20  Cal.  App.  694,  130  Pae.  190.) 

Fraudulent  and  overissued  stocks.     See  note,  87  Am.  St.  Rep.  847. 

Election  of  directors — Cumulative  or  distributive  votes. 

Sec.  12.  In  all  elections  for  directors  or  managers  of  cor- 
porations every  stockholder  shall  have  the  right  to  vote,  in 
person  or  by  proxy,  the  number  of  shares  of  stock  owned 
by  him  for  as  many  persons  as  there  are  directors  or  mana- 
gers to  be  elected,  or  to  cumulate  said  shares  and  give  one 
candidate  as  many  votes  as  the  number  of  directors  multi- 
plied by  the  number  of  his  shares  of  stock  shall  equal,  or 
to  distribute  them,  on  the  same  principle,  among  as  many 
candidates  as  he  shall  think  fit ;  and  such  directors  or 
managers  shall  not  be  elected  in  any  other  manner,  except 
that  members  of  co-operative  societies  formed  for  agricul- 
tural, mercantile,  and  manufacturing  purposes,  may  vote 


491  CORPORATIONS.  Art.  XII,  §§  13, 14 

on   all   questions   affecting   such   societies   in   manner   pre- 
scribed by  law. 

DIRECTORS. — Tinder  this  section  all  the  directors  must  be  elected 
on  one  ballot.  (Wrighf  v.  Central  etc.  Water  Co.,  67  Cal.  .532,  8  Pac. 
70.) 

Voting  by  proxy.     See  notes,  27  Am.  Dec.  60;  7  E.  C.  L.,  §§  320- 
323,  pp.  341-344. 

State  not  to  loan  its  credit  nor  subscribe  to  stock  of  cor- 
porations. 

Sec.  13.  The  state  shall  not  in  any  manner  loan  its 
credit,  nor  shall  it  subscribe  to,  or  be  interested  in  the  stock 
of  any  company,  association,  or  corporation. 

STATE  CREDIT. — This  section  prohibits  the  loaning  of  public 
credit  for  private  purposes  under  any  circumstances.  (Stockton  etc. 
E.  E.  Co.  V.  Common  Council  of  Stockton,  41  Cal.  147;  Ramsey  v. 
Hoeger,  76  111.  432.) 

It  does  not  prohibit  the  appropriation  of  public  funds  to  aid  a  cor- 
poration in  the  construction  of  a  railroad  to  be  used  for  military  pur- 
poses.    (People  V.  Pacheco,  27  Cal.  175.) 

Corporations  to  have  office  for  transaction  of  business  in 
stocks. 
Sec.  14.  Every  corporation  other  than  religious,  educa- 
tional, or  benevolent,  organized  or  doing  business  in  this 
state,  shall  have  and  maintain  an  office  or  place  in  this  state 
for  the  transaction  of  its  business,  where  transfers  of  stock 
shall  be  made,  and  in  which  shall  be  kept,  for  inspection 
by  every  person  having  an  interest  therein,  and  legislative 
committees,  books  in  which  shall  be  recorded  the  amount 
of  capital  stock  subscribed,  and  by  Avhom;  the  names  of  the 
owners  of  its  stock,  and  the  amounts  owned  by  them  re- 
spectively ;  the  amount  of  stock  paid  in,  and  by  whom ;  the 
transfers  of  stock ;  the  amount  of  its  assets  and  liabilities, 
and  the  names  and  place  of  residence  of  its  officers. 

CORPORATION  BOOKS. — A  stockholder  in  a  corporation  has  the 
right  to  inspect  the  books,  records  and  journals  of  the  corporation, 
and  this  right  may  be  enforced  by  mandamus.  The  purpose  for 
which  the  inspection  is  desired  is  immaterial.  (Johnson  v.  Langdon, 
135  Cal.  624,  87  Am.  St.  Rep.  156,  67  Pac.  1050.) 

Mandamus  will  lie  to  compel  an  inspection  of  corporate  books,  rec- 
ords and  journals.  (Gavin  v.  Pacific  Coast  M.  F.  Union,  2  Cal.  App. 
638,  84  Pac.  270.) 


Art.  XII,  §  15  CONSTITUTION  OF  1879.  492 

A  corporation  seeking  to  avoid  the  right  of  a  stockholder  to  an  in- 
spection on  the  ground  that  it  is  a  benevolent  or  charitable  corpora- 
tion has  the  burden  of  showing  that  it  is  such  a  corporation.  (Gavin 
V.  Pacific  Coast  M.  F.  Union,  2  Cal.  App.  638,  84  Pac,  270.) 

Eight   of  stockholder  to  inspect  books   and  remedies  for  its  en- 
forcement.    See  note,  107  Am.  St.  Rep.  674. 
Eight  of  stockholder  to  inspect  books  of  corporation  as  absolute 
or  qualified.     See  notes,  10  Ann.   Cas.   990;   20  Ann.  Gas.  612; 
Ann.  Cas.  1913E,  173. 
Eemedy    of    stockholder    to    enforce    right    to    inspect    corporate 

books.     See  note,  19  Ann.  Cas.  310. 
Stockholder's  right  to  inspect  books  of  national  bank.     See  note, 

1  Ann.  Cas.  130. 
Inspection  of  books.     See  7  R.  C.  L.,  §§  298-307,  pp.  322-331. 

Foreign  corporations,  conditions. 

Sec.  15.  No  corporation  organized  outside  the  limits  of 
tliis  state  shall  be  allowed  to  transact  business  within  this 
state  on  more  favorable  conditions  than  are  prescribed  by 
law  to  similar  corporations  organized  under  the  laws  of  this 
state. 

FOREIGN  CORPORATIONS.— The  act  of  1880,  providing  for  a 
penalty  for  failure  of  the  directors  of  a  domestic  mining  corporation 
to  post  weekly  reports,  etc.,  is  not  in  violation  of  this  section,  and 
does  not  relate  to  the  business  of  the  corporation.  (Miles  v.  Wood- 
ward, 115  Cal.  308,  46  Pac.  1076.) 

This  section  was  not  designed  to  limit  the  powers  of  the  legisla- 
ture when  dealing  with  the  organization  and  government  of  corpora- 
tions which  are  created  by  its  own  will  and  act.  (Miles  v.  Woodward, 
115  Cal.  308,  46  Pac,  1076.) 

The  act  of  1876,  requiring  banking  corporations  to  publish  and  file 
statements  of  their  assets  and  liabilities,  applies  to  foreign  corpora- 
tions. (Bank  of  British  North  America  v.  Madison,  99  Cal.  125,  133, 
33  Pac.  762.) 

As  to  whether  by  reason  of  this  section  foreign  corporations  must 
comply  with  section  299  of  the  Civil  Code,  query.  (Anglo-Califoriiian 
Bank  v.  Field,  146  Cal.  644,  80  Pac.  1080.) 

The  sale  of  a  parcel  of  real  estate  by  a  foreign  corporation  of  simi- 
lar character  and  purpose  to  corporations  formed  under  section  593 
of  the  Civil  Code,  being  merely  incidental  to  the  main  purpo'ses  of 
incorporation,  is  not  the  transacting  of  business,  forbidden  to  foreign 
corporations  on  more  favorable  conditions  than  are  prescribed  for 
domestic  corporations.  (General  Conference  of  Free  Baptists  v.  Ber- 
key,  156  Cal.  466,  105  Pac.  411.) 

This  section  is  not  violated  by  the  corporation  license  tax  act  of 
March  29,  1905,  as  the  conditions  prescribed  upon  which  corporations 
are  allowed  to  transact  business  within  this  state  are  absolutely  the 


I 


493  CORPORATIONS.  Art.  XII,  §  IG 

same  as  to  both  domestic  and  foreign  corporations.  (Kaiser  Land  & 
Fruit  Co.  V.  Curry,  155  Cal.  638,  103  Pac.  341.) 

The  stockholders'  liability  created  by  article  XII,  section  3,  of  this 
Constitution  does  not  applj'  to  stockholders  of  a  foreign  corporation 
doing  business  in  California,  where  its  charter  exempts  its  stockhold- 
ers from  liability  for  its  debts.  (Thomas  v.  Matthiessen,  192  Fed. 
495,  113  C.  C.  A.  101;  affirming  170  Fed.  362.) 

Under  this  provision  a  foreign  corporation's  right  to  do  business 
in  California  is  taxable.  (London  &  San  Francisco  Bank  v.  Block, 
117  Fed.  900.) 

None  of  the  sections  of  the  Civil  Code  relative  to  the  organization 
of  domestic  corporations  can  be  considered  in  the  construction  of  this 
section,  nor  can  any  foreign  corporation  be  required  to  organize  under 
the  laws  of  this  state,  as  a  condition  of  transacting  business  therein, 
since  this  section  only  refers  to  the  transaction  of  business  after  the 
corporation  is  brought  into  being  as  such.  (Western  Union  Tel.  Co. 
V.  Superior  Court,  15  Cal.  App.  679,  115  Pac.  1091,  1100.) 

If  section  359  of  the  Civil  Code  could,  under  this  section  of  the 
Constitution,  be  applied  to  foreign  corporations,  the  failure  to  observe 
its  requirements  does  not  make  bonds  issued  under  it  void  at  the 
option  of  creditors,  or  of  one  acting  in  their  interest,  where  they 
were  issued  for  a  valuable  consideration  and  without  fraud.  (McKee 
V.  Title  Ins.  Co.,  159  Cal.  206,  113  Pac.  140.) 

Jurisdiction  over  foreign  corporations.  See  note,  85  Am.  Dec. 
905. 

Powe/  of  states  to  discriminate  against  foreign  corporations.  See 
note,  95  Am.  Dec.  536. 

What  constitutes  doing  business  in  state  by  foreign  corporation. 
See  notes,  Ann.  Cas.  1912A,  553;  Ann.  Cas.  1913E,  1154;  2  Ann. 
Cas.  307;  11  Ann.  Cas.  320. 

Power  of  state  to  impose  additional  burden  on  foreign  corpora- 
tion which  has  complied  with  conditions  for  doing  business  in 
state.     See  notes,  9  Ann.  Cas.  981;  17  Ann.  Cas.  1251. 

Imposition  of  license  tax  or  fee  on  foreign  corporation.  See  note, 
Ann.  Cas.  1913C,  812. 

Corporations,  where  to  be  sued. 

Sec.  16.  A  corporation  or  association  may  be  sued  in 
the  county  where  the  contract  is  made  or  is  to  be  per- 
formed, or  where  the  obligation  or  liability  arises,  or  the 
breach  occurs;  or  in  the  county  where  the  principal  place 
of  business  of  such  corporation  is  situated,  subject  to  the 
power  of  the  court  to  change  the  place  of  trial  as  in  other 
cases. 

ACTIONS  AGAINST  CORPORATIONS.— This  section  is  merely 
permissive,  and  not  mandatory.  (Fresno  Nat.  Bank  v.  Superior 
Court,  83  Cal.  491,  24  Pac.  157.) 


Art.  XII,  §  16  CONSTITUTION  OF  1879.  494 

It  applies  to  actions  of  tort  as  well  as  matters  of  contract.  (Lewis 
V.  Southern  Pac.  E.  R.  Co.,  66  Cal.  209,  5  Pac.  79;  Tingley  v.  Times- 
Mirror  Co.,  144  Cal.  205,  77  Pac.  918.) 

It  gives  to  the  plaintiff  the  right  to  elect  either  to  sue  the  corpora- 
tion in  the  county  where  the  contract  is  made,  or  is  to  be  performed, 
or  where  the  obligation  or  liability  arises,  or  the  breach  occurs,  or  in 
the  county  where  the  principal  place  of  business  of  the  corporation  is 
situated.     (Trezevant  v.  W.  R.  Strong  Co.,  102  Cal.  47,  36  Pac.  395.) 

An  action  to  recover  damages  for  trespass  upon  real  property  may 
be  brought  in  the  county  of  the  principal  place  of  the  corporation 
defendant.  (Miller  &  Lux  v,  Kern  County  Land  Co.,  134  Cal.  586,  66 
Pac.  856.) 

An  action  may  be  commenced  against  a  corporation  in  the  county 
where  the  contract  was  made,  or  where  it  was  to  be  performed. 
(Bank  of  Yolo  v.  Sperry  Flour  Co.,  141  Cal.  314,  65  L.  B,  A.  90,  74 
Pac.  855.) 

The  right  to  sue  a  corporation  in  the  county  where  the  contract 
was  made  only  applies  when  the  corporation  is  the  sole  defendant  in 
the  case.  (Grifi6.n  etc.  Co.  v.  Magnolia  etc.  Fruit  Cannery  Co.,  107 
Cal.  378,  40  Pac.  495.) 

An  association  of  persons  organized  for  a  particular  purpose,  al- 
though not  formerly  a  corporation,  is  included  in  this  section.  The 
word  "association"  does  not  necessarily  mean  an  association  possess- 
ing corporate  powers  and  privileges.  (Kendrick  v.  Diamond  etc. 
Min.  Co.,  94  Cal.  137,  29  Pac.  324.) 

Where  the  plaintiff  sues  an  association  and  joins  the  persons  com- 
posing it  as  defendants,  he  waives  the  provisions  of  this  section. 
(Nelson  v.  East  Side  Grocery  Co.,  26  Cal.  App.  344,  146  Pac.  1055.) 

Under  this  section  an  action  for  libel  may  be  maintained  in  the 
county  in  which  the  plaintiff  resides,  when  the  newspaper  is  circu- 
lated in  that  county  but  published  in  another.  (Brady  v.  Times-Mir- 
ror Co.,  106  Cal.  56,  39  Pac.  209;  Tingley  v.  Times-Mirror  Co.,  144 
Cal.  205,  77  Pac.  918.) 

But  where  the  plaintiff  sues  other  persons  than  the  corporation  pub- 
lishing the  paper,  he  waives  the  provisions  of  this  section.  (Brady  v. 
Times-Mirror  Co.,  106  Cal.  56,  39  Pac.  209.) 

An  action  against  a  corporation  for  leave  to  redeem  real  estate  is 
properly  brought  in  the  county  where  the  real  property  is  situated. 
(Baker  v.  Fireman's  Fund  Ins.  Co.,  73  Cal.  182,  14  Pac.  686.) 

In  an  action  against  a  corporation  for  damages  for  breach  of  con- 
tract, the  defendant  is  entitled  to  a  change  of  place  of  trial  to  the 
county  in  which  its  principal  place  of  business  is  situated,  when  the 
county  in  which  the  action  is  brought  is  not  the  one  in  which  the 
contract  was  made,  or  was  to  be  performed,  or  in  which  the  obliga- 
tion arose,  or  in  which  the  principal  place  of  business  is  situated. 
(Cohn  V.  Central  Pac.  R.  R.  Co.,  71  Cal.  488,  12  Pac.  498.) 

If  this  provision  should  be  construed  as  denying  a  corporation  the 
right  to  a  change  of  venue  in  cases  in  which  a  natural  person  is 
given  such  right,  it  would  be  in  violation  of  the  fourteenth  amend- 
ment to  the  Constitution  of  the  United  States.  (Grocers'  etc.  Union 
V.  Kern  Co.  etc.  Co.,  150  Cal.  466,  89  Pac.  120.) 


495  CORPORATIONS.  Art.  XII,  §  16 

When  it  cannot  be  said  from  the  facts  set  forth  in  the  complaint 
that  the  contract  involved  was  made,  or  was  to  be  performed,  or  that 
the  liability  arose  or  breach  occurred  in  the  county  where  the  action 
was  commenced,  the  corporation  is  entitled  to  a  change  of  venue  to 
the  county  of  its  principal  place  of  business.  (Krogh  v.  Pacific  Gate- 
way etc.  Co.,  11  Cal.  App.  237,  104  Pac.  698.) 

When  an  act  of  negligence  is  committed  by  a  corporation,  the  action 
may  be  brought  in  the  county  where  committed.  (Pittman  v.  Cars- 
tenbrook,  11  Cal.  App.  224,  104  Pac.  699.) 

When  an  action  is  brought  against  a  foreign  corporation  and  indi- 
viduals, the  action  may  be  transferred  to  the  county  of  the  residence 
of  individuals,  although  the  corporation  did  not  join  in  the  motion 
for  a  change  of  venue.  (Pittman  v.  Carstenbrook,  11  Cal.  App.  224, 
104  Pac.  699.) 

A  corporation  has  an  absolute  right  to  have  an  action  removed  to 
its  place  of  residence.  (Eddy  v.  Houghton,  6  Cal.  App.  85,  91  Pac. 
397.) 

This  section  only  applies  to  domestic  corporations,  and  has  no  ap- 
plication to  foreign  corporations.  (Waechter  v.  Atchison  etc.  Ey. 
Co.,  10  Cal.  App.  70,  101  Pac.  41.) 

An  action  against  a  corporation  may  be  prosecuted  to  final  judg- 
ment where  commenced  unless  the  defendant  can  allege  and  show 
some  sufficient  ground  for  a  change  of  the  place  of  trial  distinct  from 
the  fact  that  the  residence  of  the  corporation  is  in  another  county. 
(Cook  V.  W.  S.  Ray  Mfg.  Co.,  159  Cal.  694,  115  Pac.  318.) 

This  section  denying  to  domestic  corporations  the  right,  conferred 
upon  all  natural  persons  resident  of  the  state,  of  having  personal 
actions  against  them  tried  in  the  county  where  the  defendant  resides 
does  not  violate  the  federal  Constitution  by  depriving  them  of  the 
equal  protection  of  the  laws.  (Cook  v.  W.  S.  Eay  Mfg.  Co.,  159  Cal. 
694,  115  Pac.  318.) 

This  section  is  permissive  in  effect,  and  it  is  intended  to  give  to  a 
plaintiff  the  right  to  choose  which  of  the  counties  he  will  prosecute 
his  action  in.  If  it  happens  to  be  one  within  which  the  principal 
place  of  business  of  the  corporation  is  not  located,  the  corporation 
sued  cannot  secure  a  change  of  place  of  trial  on  the  ground  that  the 
action  is  not  brought  in  the  county  of  its  residence.  (Bond  v.  Karma- 
Ajax  Consol.  Min.  Co.,  15  Cal.  App.  469,  115  Pac.  254.) 

This  section  does  not  deprive  the  superior  court  of  any  county  of 
the  state  of  jurisdiction  to  hear  and  determine  all  classes  of  actions 
generally,  within  the  limits  of  its  jurisdiction  as  defined  in  section  5 
of  article  VI  of  the  state  Constitution.  (Bond  v.  Karma-Ajax 
Consol.  Min.  Co.,  15  Cal.  App.  469,  115  Pac.  254.) 

When  a  corporation  has  shown  that  its  principal  place  of  business 
is  in  another  county,  to  defeat  the  motion  for  a  change  of  venue  the 
burden  of  proof  is  upon  plaintiff  to  show  that  the  contract  was  made, 
or  was  to  be  performed,  or  that  the  obligation  or  liability  arose  or 
the  breach  occurred  in  the  county  where  the  action  is  brouglit. 
(Hammond  v.  Ocean  Shore  Dev.  Co.,  22  Cal.  App.  167,  133  Pac.  978.) 

Jurisdiction    and    venue    of   actions   against    corporations.     See    7 
R.  C.  L.,  §§  697-699,  pp.  G95-697, 


Art.  XII,  §§  17, 18    CONSTITUTION  OF  1879.  496 

Transportation  companies,  rights  and  liabilities  of. 

Sec.  17.  All  railroad,  canal,  and  other  transportation 
companies  are  declared  to  be  common  carriers,  and  subject 
to  legislative  control.  Any  association  or  corporation,  or- 
ganized for  the  purpose,  under  the  laws  of  this  state,  shall 
have  the  right  to  connect  at  the  state  line  with  railroads  of 
other  states.  Every  railroad  company  shall  have  the  right 
with  its  road  to  intersect,  connect  with  or  cross  any  other 
railroad,  and  shall  receive  and  transport  each  the  other's 
passengers,  tonnage,  and  cars,  without  delay  or  discrimina- 
tion. 

RAILROADS, — The  legislature  may  regulate  railroad  crossings. 
(Pittsburg  etc.  R.  R.  Co.  v.  Southwest  etc.  Ry.  Co.,  77  Pa.  173.) 

It  may  require  railroad  companies  to  ring  a  bell  or  sound  a  whistle 
at  a  crossing.  (Galena  etc.  R.  R.  Co.  v.  Appleby,  28  111.  283;  Galena 
etc.  R.  R.  Co.  V.  Loomis,  13  111.  548,  56  Am.  Dec.  471.) 

It  may  regulate  the  speed  of  trains  in  a  city.  (Chicago  etc.  R.  R. 
Co.  V.  Haggerty,  67  III.  113.) 

It  may  require  them  to  erect  fences  and  cattle-guards.  (Suydam 
V.  Moore,  8  Barb.  (N.  Y.)  358;  Waldron  v.  Rensselaer  etc.  R.  R.  Co., 
8  Barb.  (N.  Y.)  390;  New  Albany  etc.  R.  Co.  v.  Tilton,  12  Ind.  3,  74 
Am.  Dec.  195;  Madison  etc.  R.  R.  Co.  v.  Whiteneck,  8  Ind.  217;  Ohio 
etc.  R.  R.  Co.  V.  McClelland,  25  111.  140;  Kansas  etc.  Ry.  Co.  v.  Mower, 
16  Kan.  573;  Jones  v.  Galena  etc.  R.  R.  Co.,  16  Iowa,  6;  Indianapolis 
etc.  R.  R.  Co.  V.  Kercheval,  16  Ind.  84;  Nichols  v.  Somerset  etc.  R.  R. 
Co.,  43  Me.  356;  Winona  etc.  R.  R.  Co.  v.  Waldron,  11  Minn.  515,  88 
Am.  Dec.  100;  Gorman  v.  Pacific  R.  Co.,  26  Mo.  441,  72  Am.  Dec.  220; 
Blair  v.  Milwaukee  etc.  R.  R.  Co.,  20  Wis.  254;  Pennsylvania  R.  R. 
Co.  V.  Riblet,  66  Pa.  164,  5  Am.  Rep.  360.) 

A  railroad  company  can  be  compelled  to  exercise  its  assumed  duties 
and  powers.  (Madera  Ry.  Co.  v.  Raymond  Granite  Co.,  3  Cal.  App. 
668,  87  Pac.  27.) 

This  provision  is  not  self-executing  in  the  sense  of  authorizing  the 

taking   of  land   by  a  railroad   corporation,   regardless  of  its   charter 

powers   and   of   the   statute   providing  for   condemnation.     (Boca  etc. 

R.  R.  Co.  V.  Sierra  Valleys  R.  R.  Co.,  2  Cal.  App.  546,  84  Pac.  298.) 

Distinction  between  common  and  private  carriers.     See  notes,  130 

Am.  St.  Rep.  34;  4  R.  C.  L.,  §  8,  p.  549. 

OflBcers  of  corporations,  restriction  as  to  interests. 

Sec.  18.  No  president,  director,  officer,  agent,  or  em- 
ployee of  any  railroad  or  canal  company  shall  be  interested, 
directly  or  indirectly,  in  the  furnishing  of  material  or  sup- 
plies to  such  company,  nor  in  the  business  of  transportation 
as   a   common   carrier   of  freight   or  passengers   over   the 


497  CORPORATIONS.  Art.  XII,  §§  19, 20 

works  owned,  leased,  controlled,  or  Avorked  by  such  com- 
pany, except  such  interest  in  the  business  of  transportation 
as  lawfully  flows  from  the  ownership  of  stock  therein. 

Free  passes  on  railroads  prohibited  to  state  oflEicials. 

Sec.  19.  No  railroad  or  other  transportation  company 
shall  grant  free  passes,  or  passes  or  tickets  at  a  discount,  to 
any  person  holding  any  office  of  honor,  trust,  or  profit  in 
this  state ;  and  the  acceptance  of  any  such  pass  or  ticket, 
by  a  member  of  the  legislature  or  any  public  officer,  other 
than  railroad  commissioner,  shall  work  a  forfeiture  of  his 
office. 

RAILROAD  PASSES. — As  to  the  nature  of  a  proceeding  to  remove 
an  officer  for  accepting  a  railroad  pass,  see  People  v.  Superior  Court, 
114  Cal.  466,  46  Pac.  383. 

Constitutional  or  statutory  provisions  against  gift  or  receipt   of 

free  railroad  transportation.     See  note,  17  Ann.  Cas.  662. 
Forbidding  issuance  of  free  passes.     See  4  E.  C.  L.,  §  84,  p.  613. 

Fares  and  freights  to  be  regnlated  by  government. 

Sec.  20.  No  railroad  or  other  transportation  company 
shall  raise  any  rate  of  charge  for  the  transportation  of 
freight  or  passengers  or  any  charge  connected  therewith  or 
incidental  thereto,  under  any  circumstances  whatsoever, 
except  upon  a  showing  before  the  railroad  commission  pro- 
vided for  in  this  Constitution,  that  such  increase  is  justi- 
fied, and  the  decision  of  the  said  commission  upon  the 
showing  so  made  shall  not  be  subject  to  review  by  any 
court  except  upon  the  question  whether  such  decision  of 
the  commission  will  result  in  confiscation  of  property. 
(Amendment  approved  October  10,  1911.) 

[ORIGINAL  SECTION.] 
Sec.  20.  No  railroad  company  or  other  common  carrier  shall 
combine  or  make  any  contract  with  the  owners  of  any  vessel  t4iat 
leaves  port  or  makes  port  in  this  state,  or  with  any  common  car- 
rier, by  which  combination  or  contract  the  earnings  of  one  doing 
the  carrying  are  to  be  shared  by  the  other  not  doing  the  carrying. 
And  whenever  a  railroad  corporation  shall,  for  the  purpose  of  com- 
peting with  any  other  common  carrier,  lower  its  rates  for  trans- 
portation of  passengers  or  freight  from  one  point  to  another,  such 
reduced  rates  shall  not  be  again  raised  or  increased  from  such 
Constitution — 33 


Art.  XII,  §  21  CONSTITUTION  OP  1879.  498 

standard   without   the   consent   of   the   governmental   authority    in 
which  shall  be  vested  the  power  to  regulate  fares  and  freights. 

COMPETITION. — Where  a  railroad  company  lowers  its  passenger 
rates  in  order  to  compete  with  another  road,  and  afterward  raises 
them  without  the  consent  of  the  railroad  commissioners,  such  commis- 
sioners have  no  jurisdiction  to  require  a  restoration  of  the  lower  rate. 
(Edson  V.  Southern  Pac.  Co.,  133  Cal.  25,  65  Pac.  15.) 

The  object  of  this  provision  was  to  foster  legitimate  competition  by 
preventing  destructive  competition.  (Edson  v.  Southern  Pacific  R.  R. 
Co.,  144  Cal.  182,  77  Pac.  894.) 

Eates  are  not  lowered  for  the  purpose  of  competing  with  any  other 
common  carrier  within  the  meaning  of  this  section,  when  they  are 
merely  lowered  in  self-defense  to  meet  a  lower  destructive  rate  first 
inaugurated  by  a  rival  railroad  company.  (Edson  v.  Southern  Pacific 
E.  R.  Co.,  144  Cal.  182,  77  Pac.  894.) 

A  railroad  lowers  its  rates  within  the  meaning  of  this  section  by 
establishing  limited  tickets  at  reduced  rates  which  are  used  by  ninety- 
five  per  cent  of  its  passengers,  although  no  stop-over  privileges  are 
given  and  liability  for  baggage  is  limited,  and  unlimited  tickets  are 
still  kept  on  sale.  (Edson  v.  Southern  Pacific  E.  R.  Co.,  144  Cal.  182, 
77  Pac.  894.) 

Rates  and  rate  regulation.     See  4  R.  C.  L.,  §§  78-136,  pp.  606-657. 

Discrimination  in  charges  by  carriers  forbidden. 

See.  21.  No  discrimination  in  charges  or  facilities  for 
transportation  shall  be  made  by  any  railroad  or  other 
transportation  company  between  places  or  persons,  or  in 
the  facilities  for  the  transportation  of  the  same  classes  of 
freight  or  passengers  within  tliis  state.  It  shall  be  unlaw- 
ful for  any  railroad  or  other  transportation  company  to 
charge  or  receive  any  greater  compensation  in  the  aggre- 
gate for  the  transportation  of  passengers  or  of  like  kind  of 
property  for  a  shorter  than  for  a  longer  distance  over  the 
same  line  or  route  in  the  same  direction,  the  shorter  being 
included  within  the  longer  distance,  or  to  charge  any 
greater  compensation  as  a  through  rate  than  the  aggregate 
of  the  intermediate  rates.  Provided,  however,  that  upon 
application  to  the  railroad  commission  provided  for  in  this 
Constitution  such  company  may,  in  special  cases,  after  in- 
vestigation, be  authorized  by  such  commission  to  charge 
less  for  longer  than  for  shorter  distances  for  the  transporta- 
tion of  persons  or  property  and  the  railroad  commission 
may  from  time  to  time  prescribe  the  extent  to  which  such 
company  may  be  relieved  from  the  prohibition  to  charge 


499  CORPORATIONS.  Art.  XII,  §  21 

less  for  the  longer  than  for  the  shorter  haul.  The  railroad 
commission  shall  have  power  to  authorize  the  issuance  of 
excursion  and  commutation  tickets  at  special  rates.  Noth- 
ing; herein  contained  shall  be  construed  to  prevent  the  rail- 
road commission  from  ordering  and  compelling  any  rail- 
road or  other  transportation  company  to  make  reparation 
to  any  shipper  on  account  of  the  rates -charged  to  said  ship- 
per being  excessive  or  discriminatory,  provided  no  dis- 
crimination will  result  from  such  reparation.  (Amend- 
ment approved  October  10,  1911.) 

[OEIGINAL  SECTION.] 

Sec.  21.  No  discrimination  in  charges  or  facilities  for  trans- 
portation sliall  be  made  by  any  railroad  or  other  transportation 
company  between  places  or  persons,  or  in  the  facilities  for  the 
transportation  of  the  same  classes  of  freight  or  passengers  within 
this  state,  or  coming  from  or  going  to  any  other  state.  Persons 
and  property  transported  over  any  railroad,  or  by  any  other  trans- 
portation company  or  individual,  shall  be  delivered  at  any  station, 
landing,  or  port,  at  charges  not  exceeding  the  charges  for  the 
transportation  of  persons  and  property  of  the  same  class,  in  the 
same  direction,  to  any  more  distant  station,  port,  or  landing.  Ex- 
cursion and  commutation  tickets  may  be  issued  at  special  rates. 

FREIGHTS  AND  FARES.— The  provision  of  this  section  as  to  ex- 
cursion or  commutation  tickets  is  not  intended  to  modify  section  20  of 
this  article;  but  is  simply  a  qualification  of  the  preceding  clause  of 
this  section.  (Edson  v.  Southern  Pacific  R.  E.  Co.,  144  Cal.  182,  77 
Pac.  894.) 

The  new  remedy  of  a  proceeding  before  the  railroad  commission,  in 
cases  of  excessive  or  discriminatory  rates  charged  by  carriers,  at- 
tached to  any  such  right  as  had  not  been  barred  by  the  statute  of 
limitations.  (Scott,  Magner  &  Miller  v.  Southern  Pac.  Co.,  1  C.  R.  C. 
68,  69;  F,  Cames  Co.  v.  Southern  Pac.  Co.,  1  C.  R.  C.  74,  75;  Pioneer 
Box  Co.  V.  Southern  Pac.  Co.,  1  C.  R.  C.  568,  572.) 

There  was  no  offense  under  this  section,  as  it  existed  prior  to 
October  10,  1911,  unless  the  carrier  made  a  lesser  charge  for  a  trans- 
portation to  a  more  distant  station  or  port  in  the  same  direction,  and 
it  is  not  sufficient  that  the  lower  rate  is  from  a  more  distant  station 
or  port.  (Scott,  Magner  &  Miller  v.  Western  Pacific  Ry.  Co.,  2  C.  R. 
C.  626,  629;  Scott,  Magner  &  Miller  v.  Southern  Pacific  Co.,  3  C.  R.  C. 
339,  342;  Livermore  Warehouse  Co.  v.  Southern  Pacific  Co.,  3  C.  R.  C. 
343,  344.) 

This  section  was  only  intended  to  apply  to  one-way  fares  higher 
than  the  aggregate  of  the  intermediate  one-way  fares,  and  does  not 
make  unlawful  the  charging  of  round-trip  fares  in  excess  of  the  ag- 
gregate of  the  intermediate  round-trip  fares.  (In  re  Fares,  Rules  and 
Regulations  of  the  Northwestern  Pacific  R.  R.  Co.,  2  C.  R.  C.  910,  923.) 


Art.  XII,  §  22  CONSTITUTION  OF  1879.  500 

The  long  and  short  haul  clauses  found  here  and  in  the  so-called 
"Wright  Act"  are  only  binding  upon  the  carriers  until  the  state  estab- 
lishes the  rates  as  provided,  and  thereafter  the  long  and  short  haul 
principle  governs  the  railroad  commission  in  establishing  the  rates. 
(Scott,  Magner  &  Miller  v.  Western  Pacific  Ey.  Co.,  2  C.  R.  C.  626, 
637;  Scott,  Magner  &  Miller  v.  Southern  Pac.  Co.,  3  C.  R.  C.  339,  340.) 
This  section  as  amended  in  1911  does  not  apply  to  the  transportation 
by  a  baggage  or  transfer  company  from  or  to  the  railroad  company's 
depot.  (Red  Line  Tourists  Agency  v.  Southern  Pacific  Co.,  3  C.  R.  C 
526,  532.) 

The  provisions  of  this  section  relating  to  through  rates  in  excess 
of  the  aggregate  of  intermediate  rates  are  prohibitory,  and  the  rail- 
road commission  is  not  vested  with  any  discretionary  power  in  the 
application  of  this  provision,  as  in  the  case  of  the  long  and  short 
haul  provision.  (In  re  Application  of  Southern  Pacific  Co.,  4  C.  R.  C. 
649,  650;  In  re  Application  of  Atchison,  Topeka  &  Santa  Fe  Ry.  Co., 
4  C.  R.  C.  964,  965,  969,  970,  971,  972.) 

What  are  unlawful  and  unreasonable  discriminations.     See  notes, 

44  Am.  Rep.  568;  54  Am.  Rep.  862;  11  Am.  St.  Rep.  647. 
Discrimination  between  shippers.     See  note,  1  Ann.  Cas.  55. 
Requirement  of  prepayment  of  freight  charges  as  unlawful   dis- 
crimination by  carrier.     See  note,  16  Ann.  Cas.  621. 
Discrimination  by  carriers.     See  4  R.  C.  L.,  §§  35-77,  pp.  565-606. 

Railroad  commission,  organization  of. 

Sec.  22.  There  is  hereby  created  a  railroad  commission 
which  shall  consist  of  five  members  and  which  shall  be 
known  as  the  railroad  commission  of  the  state  of  California. 
The  commission  shall  be  appointed  by  the  governor  from 
the  state  at  large ;  provided,  that  the  legislature,  in  its  dis- 
cretion, may  divide  the  state  into  districts  for  the  purpose 
of  such  appointments,  said  districts  to  be  as  nearly  equal  in 
population  as  practicable ;  and  provided  further  that  the 
three  commissioners  in  office  at  the  time  this  section  takes 
effect  shall  serve  out  the  term  for  which  they  were  elected, 
and  that  two  additional  commissioners  shall  be  appointed 
by  the  governor  immediately  after  the  adoption  of  this 
section,  to  hold  office  during  the  same  term.  Upon  the  ex- 
piration of  said  term,  the  term  of  office  of  each  commis- 
sioner thereafter  shall  be  six  years,  except  the  commission- 
ers first  appointed  hereunder  after  such  expiration,  one  of 
whom  shall  be  appointed  to  hold  office  until  January  1, 
1917,  two  until  January  1,  1919,  and  two  until  January  1, 
1921.     "Whenever  a  vacancy  in  the  office  of  commissioner 


I 


501  CORPORATIONS.  Art.  XII,  §  22 

shall  occur,  the  governor  shall  forthwith  appoint  a  quali- 
fied person  to  fill  the  same  for  the  unexpired  term.  Com- 
missioners appointed  for  regular  terms  shall,  at  the  begin- 
ning of  the  term  for  which  they  are  appointed  and  those 
appointed  to  fill  vacancies,  shall,  immediately  upon  their 
appointment,  enter  upon  the  duties  of  their  offices.  The 
legislature  shall  fix  the  salaries  of  the  commissioners,  but 
pending  such  action  the  salaries  of  the  commissioners,  their 
officers  and  employees  shall  remain  as  now  fixed  by  law. 
The  legislature  shall  have  the  power,  by  a  two-thirds  vote 
of  all  members  elected  to  each  house,  to  remove  any  one  or 
more  of  said  commissioners  from  office  for  dereliction  of 
duty  or  corruption  or  incompetency.  All  of  said  commis- 
sioners shall  be  qualified  electors  of  this  state,  and  no  per- 
son in  the  employ  of  or  holding  any  official  relation  to  any 
person,  firm  or  corporation,  which  said  person,  firm  or  cor- 
poration is  subject  to  regulation  by  said  railroad  commis- 
sion and  no  person  owning  stock  or  bonds  of  any  such  cor- 
poration or  who  is  in  any  manner  pecuniarily  interested 
therein,  shall  be  appointed  to  or  hold  the  office  of  railroad 
commissioner.  No  vacancy  in  the  commission  shall  impair 
the  right  of  the  remaining  commissioners  to  exercise  all  the 
powers  of  the  commission.  The  act  of  a  majority  of  the 
commissioners  when  in  session  as  a  board  shall  be  deemed 
to  be  the  act  of  the  commission ;  but  any  investigation,  in- 
quiry or  hearing  which  the  commission  has  power  to  under- 
take or  to  hold  may  be  undertaken  or  held  by  or  before  any 
commissioner  designated  for  the  purpose  by  the  commis- 
sion, and  every  order  made  by  a  commissioner  so  desig- 
nated, pursuant  to  such  inquiry,  investigation  or  hearing, 
when  approved  or  confirmed  by  the  commission  ordered 
filed  in  its  office,  shall  be  deemed  to  be  the  order  of  the 
commission. 

Said  commission  shall  have  the  power  to  establish  rates 
of  charges  for  the  transportation  of  passengers  and  freight 
by  railroads  and  other  transportation  companies,  and  no 
railroad  or  other  transportation  company  shall  charge  or 
demand  or  collect  or  receive  a  greater  or  less  or  different 
compensation    for    such    transportation    of    passengers    or 


Art.  XII,  §  22  CONSTITUTION  OF  1879.  502 

freight,  or  for  any  service  in  connection  therewith,  between 
the  points  named  in  any  tariff  of  rates,  established  by  said 
commission,  than  the  rates,  fares  and  charges  which  are 
specified  in  such  tariff.  The  commission  shall  have  the 
further  power  to  examine  books,  records  and  papers  of  all 
railroad  and  other  transportation  companies ;  to  hear  and 
determine  complaints  against  railroad  and  other  transpor- 
tation companies ;  to  issue  subpoenas  and  all  necessary  pro- 
cess and  send  for  persons  and  papers ;  and  the  commission 
and  each  of  the  commissioners  shall  have  the  power  to  ad- 
minister oaths,  take  testimony  and  punish  for  contempt  in 
the  same  manner  and  to  the  same  extent  as  courts  of  rec- 
ord ;  the  commission  may  prescribe  a  uniform  system  of  ac- 
counts to  be  kept  by  all  railroad  and  other  transportation 
companies. 

No  provision  of  this  Constitution  shall  be  construed  as 
a  limitation  upon  the  authority  of  the  legislature  to  confer 
upon  the  railroad  commission  additional  powers  of  the 
same  kind  or  different  from  those  conferred  herein  which 
are  not  inconsistent  with  the  powers  conferred  upon  the 
railroad  commission  in  this  Constitution,  and  the  authority 
of  the  legislature  to  confer  such  additional  powers  is  ex- 
pressly declared  to  be  plenary  and  unlimited  by  any  pro- 
vision of  this  Constitution. 

The  provisions  of  this  section  shall  not  be  construed  to 
repeal  in  whole  or  in  part  any  existing  law  not  inconsistent 
herewith,  and  the  "Railroad  Commission  Act"  of  this  state 
approved  February  10,  1911,  shall  be  construed  with  refer- 
ence to  this  constitutional  provision  and  any  other  constitu- 
tional provision  becoming  operative  concurrently  herewith. 
And  the  said  act  shall  have  the  same  force  and  effect  as  if 
the  same  had  been  passed  after  the  adoption  of  this  provi- 
sion of  the  Constitution  and  of  all  other  provisions  adopted 
concurrently  herewith,  except  that  the  three  commissioners 
referred  to  in  said  act  shall  be  held  and  construed  to  be  the 
five  commissioners  provided  for  herein.  (Amendment  ap- 
proved October  10,  1911.) 


503  CORPORATIONS.  Art.  XII,  §  22 

[OEIGINAL  SECTION.] 
See.  22.  The  state  shall  be  divided  into  three  districts  as  nearly- 
equal  in  population  as  practicable,  in  each  of  "which  one  railroad 
commissioner  shall  be  elected  by  the  qualified  electors  thereof 
at  the  regular  gubernatorial  elections,  whose  salary  shall  be 
fixed  by  law,  and  whose  term  of  office  shall  be  four  years,  com- 
mencing on  the  first  Monday  after  the  first  day  of  January  next 
succeeding  their  election.  Said  commissioners  shall  be  qualified 
electors  of  this  state  and  of  the  district  from  which  they  are 
elected,  and  shall  not  be  interested  in  any  railroad  corporation,  or 
other  transportation  company,  as  stockholder,  creditor,  agent, 
attorney  or  employee;  and  the  act  of  a  majority  of  said  commis- 
Bioners  shall  be  deemed  the  act  of  said  commission.  Said  commis- 
sioners shall  have  the  power,  and  it  shall  be  their  duty,  to 
establish  rates  of  charges  for  the  transportation  of  passengers  and 
freight  by  railroad  or  other  transportation  companies,  and  publish 
the  same  from  time  to  time,  with  such  changes  as  they  may  make; 
to  examine  the  books,  records,  and  papers  of  all  railroad  and  other 
transportation  companies,  and  for  this  purpose  they  shall  have 
power  to  issue  subpoenas  and  all  other  necessary  process;  to  hear 
and  determine  complaints  against  railroad  and  other  transporta- 
tion companies,  to  send  for  persons  and  papers,  to  administer 
oaths,  take  testimony,  and  punish  for  contempt  of  their  orders  and 
processes,  in  the  same  manner  and  to  the  same  extent  as  courts  of 
record,  and  enforce  their  decisions  and  correct  abuses  through  the 
medium  of  the  courts.  Said  commissioners  shall  prescribe  a  uni- 
form system  of  accounts  to  be  kept  by  all  such  corporations  and 
companies.  Any  railroad  corporation  or  transportation  company 
which  shall  fail  or  refuse  to  conform  to  such  rates  as  shall  be 
established  by  such  commissioners,  or  shall  charge  rates  in  excess 
thereof,  or  shall  fail  to  keep  their  accounts  in  accordance  with  the 
system  prescribed  by  the  commission,  shall  be  fined  not  exceeding 
twenty  thousand  dollars  for  each  offense,  and  every  officer,  agent, 
or  employee  of  any  such  corporation  or  company,  who  shall  de- 
mand or  receive  rates  in  excess  thereof,  or  who  shall  in  any  man- 
ner violate  the  provisions  of  this  section,  shall  be  fined  not 
exceeding  five  thousand  dollars,  or  ba  imprisoned  in  the  county 
jail  not  exceeding  one  year.  In  all  controversies,  civil  or  crimi- 
nal, the  rates  of  fares  and  freights  established  by  said  commission 
shall  be  deemed  conclusively  just  and  reasonable,  and  in  any 
action  against  such  corporation  or  company  for  damages  sustained 
by  charging  excessive  rates,  the  plaintiff,  in  addition  to  the  actual 
damage,  may,  in  the  discretion  of  the  judge  or  jury,  recover  exem- 
plary damages.  Said  commission  shall  report  to  the  governor, 
annually,  their  proceedings,  and  such  other  facts  as  may  be  deemed 
important.  Nothing  in  this  section  shall  prevent  individuals  from 
maintaining  actions  against  any  of  such  companies.  The  legisla- 
ture may,  in  addition  to  any  penalties  herein  prescribed,  enforce 
this  article  by  forfeiture  of  charter  or  otherwise,  and  may  confer 
such  further  powers  on  the  commissioners  as  shall  be  necessary  to 
enable  them  to  perform  the  duties  enjoined  on  them  in  this  and 


Art.  XII,  §  22  CONSTITUTION  OF  1879.  504 

the  foregoing  section.  The  legislature  shall  have  power,  by  a 
two-thirds  vote  of  all  the  members  elected  to  each  house,  to  re- 
move any  one  or  more  of  said  commissioners  from  office,  for  dere- 
liction of  duty,  or  corruption,  or  incompetency;  and  whenever, 
from  any  cause,  a  vacancy  in  office  shall  occur  in  said  commission, 
the  governor  shall  fill  the  same  by  the  appointment  of  a  qualified 
person  thereto,  who  shall  hold  office  for  the  residue  of  the  unex- 
pired term,  and  until  his  successor  shall  have  been  elected  and 
qualified. 

RAILROAD  COMMISSION.— This  section  should  be  construed  to 
extend  the  supervision  of  the  commission  to  all  persons  engaged  in 
the  business  of  transportation,  whether  as  corporations,  joint-stock 
companies,  partnerships,  or  individuals.  (Moran  v.  Eoss,  79  Cal.  159, 
21  Pac.  547.) 

This  section  did  not  repeal  section  490  of  the  Civil  Code,  although 
that  section  refers  to  section  489  of  the  same  code,  which  was  super- 
seded by  this  section.  (Robinson  v.  Southern  Pac.  E.  E.  Co.,  105  Cal. 
526,  28  L.  R.  A.  773,  38  Pac.  94,  722.) 

A  statute  may  authorize  the  appointment  of  commissioners  to  de- 
termine the  duties  and  obligations  of  railroad  companies.  (Portland 
etc.  E.  R.  Co.  V.  Grand  Trunk  Ey.  Co.,  46  Me.  69.) 

The  commission  has  no  jurisdiction  over  a  street  railroad  corpora- 
tion operated  in  a  municipality.  (Board  of  Railroad  Commrs.  v.  Mar- 
ket St.  Ry.  Co.,  132  Cal.  677,  64  Pac.  1065.) 

The  commission  has  no  jurisdiction,  upon  a  complaint  that  a  rail- 
road company  lowered  its  passenger  rates  in  order  to  compete  with 
another  road,  and  afterward  raised  them  without  the  consent  of  the 
commission,  to  require  a  restoration  of  the  lower  rate.  (Edson  v. 
Southern  Pac.  Co.,  133  Cal.  25,  65  Pac.  15.) 

Sections  22  and  23  as  amended  in  1911  created,  in  the  state  rail- 
road commission,  both  a  court  and  an  administrative  tribunal,  and 
gave  such  commission  control  of  the  public  utilities  of  the  state. 
These  sections  also  authorized  the  legislature  to  confer  such  addi- 
tional and  different  powers  upon  the  commission  touching  public 
utilities  as  it  may  see  fit,  unrestrained  by  other  constitutional  provi- 
sions, and  the  legality  of  such  powers  as  the  legislature  has  or  may 
thus  confer  upon  the  commission,  if  cognate  and  germane  to  the  sub- 
ject of  public  utilities,  may  not  be  questioned  under  the  state  Con- 
stitution. (Pacific  Tel.  etc.  Co.  v.  Eshleman,  166  Cal.  640,  Ann.  Cas. 
1915C,  822,  50  L.  R.  A.  (N.  S.)  652,  137  Pac.  1119.) 

The  deprivation  of  jurisdiction  of  the  courts  of  the  state  may  not 
be  questioned,  and  the  reasonableness  of  the  railroad  commission's 
orders  and  decrees  may  not  be  inquired  into  by  any  court  of  this 
state,  and  consequently  is  of  federal  cognizance  only.  (Pacific  Tel. 
etc.  Co.  V.  Eshleman,  166  Cal.  640,  Ann.  Cas.  1915C,  822,  50  L.  R.  A. 
(N.  S.)  652,  137  Pac.  1119.) 

Sections  22  and  23  as  amended  in  1911  confer  jurisdiction  upon, 
the  railroad  commission  in  the  matter  of  fixing  rates  to  be  charged 
for  transportation  of  passengers  and  freight  between  two  ports  in 
this  state,  notwithstanding  that  the  vessels,  in  passing  from  one  port 
to  the  other,  must  travel  in  part  over  the  high  seas,  and  outside  of 


505  CORPORATIONS.  Art.  XII,  §  23 

the  territorial  jurisdiction  of  the  state.  (Wilmington  Transp.  Co.  v. 
Eailroad  Commission,  166  Cal.  741,  137  Pac.  1153;  affirmed  in  Wilming- 
ton Transp.  Co.  v.  Eailroad  Commission,  236  U.  S.  151,  59  L.  Ed.  508, 
35  Sup.  Ct.  Rep.  276.) 

No  city  has  any  jurisdiction  over  any  purely  transportation  service, 
since,  by  virtue  of  this  section,  that  power  has  always  been  lodged  in 
the  railroad  commission.  (In  re  Southern  Pacific  Co.  et  al..  Canceling 
Items,  1  C.  E.  C.  744,  752.) 

The  amendments  to  sections  22  and  23  of  1910  conferred  all  of  the 
power  over  public  utilities  theretofore  exercised  by  boards  of  super- 
visors, and  additional  important  powers  respecting  both  the  service 
and  rates  of  such  liabilities,  upon  the  railroad  commission.  (In  re 
Application  of  James  A.  Murray,  2  C.  R.  C.  464,  477.) 

The  legislature  had  the  power  under  this  provision  to  confer  upon 
the  railroad  commission  all  the  powers  which  it  purported  to  confer 
with  reference  to  railroad  crossings  by  section  43  of  the  Public 
Utilities  Act.  (In  re  Application  of  Board  of  Trustees  of  Alhambra, 
2  C.  E.  C.  361,  364.) 

Under  this  section,  prior  to  October  10,  1911,  it  was  made  the  duty 
of  the  railroad  commission  to  establish  freight  and  passenger  rates, 
and  the  rates  thus  established  were  made  conclusively  just  and  rea- 
sonable. (Scott,  Magner  &  Miller  v.  Western  Pacific  Ey,  Co.,  2  C.  E, 
C.  626,  630.) 

As  the  carriers  now  make  and  file  their  own  rates,  pursuant  to  the 
amendment  of  October  10,  1911,  to  this  section,  they  should  be  liable 
to  make  reparation  if  these  rates  are  unjust  and  unreasonable.  (Scott, 
Magner  &  Miller  v.  Western  Pacific  Ey.  Co.,  2  C.  E.  C.  626,  637.) 

Where  the  board  of  railroad  commissioners  prior  to  October  10,  1911, 
established  rates,  they  were  conclusively  just  and  reasonable,  and  no 
right  of  action  arose  on  the  doctrine  of  discrimination  against  any 
railroad  company  which  collected  the  rates  actually  established  by  the 
board  of  railroad  commissioners.  (Penoyar  v.  Southern  Pacific  Co.,  3 
C.  E.  C.  576,  580.) 

When  a  wharf  is  used  to  perform  a  terminal  service  which  the 
carrier  must  perform  under  its  contract  of  carriage,  it  is  purely 
transportation  service  over  which  the  railroad  commission  and  not  a 
municipality  has  jurisdiction.  (In  re  Southern  Pacific  Co.  et  al..  Can- 
celing Items,  1  C.  E.  C.  744,  752.) 

Services  of  a  carrier  which  are  not  performed  as  carrier,  but  per- 
formed otherwise  than  as  carrier, — for  instance,  as  warehouseman, — 
may  be  under  the  jurisdiction  of  municipalities,  if  their  charters  had, 
prior  to  March  23,  1912,  given  them  such  jurisdiction.  (In  re  South- 
ern Pacific  Co.  et  al.,  Canceling  Items,  1  C.  E.  C.  744,  752.) 

Railroad  commission,  regulation  of  public  utilities. 

Sec.  23.  Every  private  corporation,  and  every  individ- 
ual or  association  of  individuals,  owning,  operating,  man- 
aging, or  controlling  any  commercial  railroad,  interurban 
railroad,   street   railroad,   canal,    pipe-line,   plant,   or   c(]uip- 


Art.  XII,  §  23  CONSTITUTION  OF  1879.  506 

ment.  or  any  part  of  such  railroad,  canal,  pipe-line,  plant 
or  equipment  Avithin  this  state,  for  the  transportation  or 
conveyance  of  passengers,  or  express  matter,  or  freight  of 
any  kind,  including  crude  oil,  or  for  the  transmission  of 
telephone  or  telegraph  messages,  or  for  the  production, 
generation,  transmission,  delivery  or  furnishing  of  heat, 
light,  water  or  power  or  for  the  furnishing  of  storage  or 
Avharfage  facilities,  either  directly  or  indirectly,  to  or  for 
the  public,  and  every  common  carrier,  is  hereby  declared  to 
be  a  public  utility  subject  to  such  control  and  regulation 
by  the  railroad  commission  as  may  be  provided  by  the  legis- 
latvire,  and  every  class  of  private  corporations,  individuals, 
or  associations  of  individuals  hereafter  declared  by  the 
legislature  to  be  public  utilities  shall  likewise  be  subject 
to  such  control  and  regulation.  The  railroad  commission 
shall  have  and  exercise  such  power  and  jurisdiction  to 
supervise  and  regulate  public  utilities,  in  the  state  of  Cali- 
fornia, and  to  fix  the  rates  to  be  charged  for  commodities 
furnished,  or  services  rendered  by  public  utilities  as  shall 
be  conferred  upon  it  by  the  legislature,  and  the  right  of  the 
legislature  to  confer  powers  upon  the  railroad  commission 
respecting  public  utilities  is  hereby  declared  to  be  plenary 
and  to  be  unlimited  by  any  provision  of  this  Constitution, 
From  and  after  the  passage  by  the  legislature  of  laws  con- 
ferring powers  upon  the  railroad  commission  respecting 
public  utilities,  all  powers  respecting  such  public  utilities 
vested  in  boards  of  supervisors,  or  municipal  councils,  or 
other  governing  bodies  of  the  several  counties,  cities  and 
counties,  cities  and  towns,  in  this  state,  or  in  any  commis- 
sion created  by  law  and  existing  at  the  time  of  the  passage 
of  such  laws,  shall  cease  so  far  as  such  powers  shall  conflict 
with  the  powers  so  conferred  upon  the  railroad  commis- 
sion; provided,  however,  that  this  section  shall  not  affect 
such  powers  of  control  over  public  utilities  as  relate  to  the 
making  and  enforcement  of  local,  police,  sanitary  and  other 
regulations,  other  than  the  fixing  of  rates,  vested  in  any 
city  and  county  or  incorporated  city  or  town  as,  at  an  elec- 
tion to  be  held  pursuant  to  law,  a  majority  of  the  qualified 
electors  of  such  city  and  county,  or  incorporated  city  or 


)07  coRPORATiOx^s.  Art.  XII, 


town,  voting  thereon,  shall  vote  to  retain,  and  until  such 
election  such  powers  shall  continue  unimpaired ;  but  if  the 
vote  so  taken  shall  not  favor  the  continuation  of  such  J)Oav- 
€rs  they  shall  thereafter  vest  in  the  railroad  commission  as 
provided  by  law;  and  provided,  further,  that  where  any 
such  city  and  county  or  incorporated  city  or  tow^n  shall 
have  elected  to  continue  any  of  its  powers  to  make  and  en- 
force such  local,  police,  sanitary  and  other  regulations, 
other  than  the  fixing  of  rates,  it  may,  by  vote  of  a  majority 
of  its  qualified  electors  voting  thereon,  thereafter  surren- 
der such  powers  to  the  railroad  commission  in  the  manner 
prescribed  by  the  legislature ;  and  provided,  further,  that 
this  section  shall  not  affect  the  right  of  any  city  and  county 
or  incorporated  city  or  town  to  grant  franchises  for  public 
utilities  upon  the  terms  and  conditions  and  in  the  manner 
prescribed  by  law.  Nothing  in  this  section  shall  be  con- 
strued as  a  limitation  upon  any  poAver  conferred  upon  the 
railroad  commission  by  any  provision  of  this  Constitution 
now  existing  or  adopted  concurrently  herewith.  (Amend- 
ment adopted  November  3,  1914.) 

[AMENDMENT  OF  1911.] 
Sec.  23.     Every    private    corporation,    and    every    individual    or 
association  of  individuals,  owning,  operating,  managing  or  control 
ling  any  commercial  railroad,  interurban  railroad,  street  railroad 
canal,  pipe-line,  plant,  or  equipment,  or  any  part  of  such  railroad 
canal,  pipe-line,  plant  or  equipment  within  this  state,  for  the  trans 
portation  or  conveyance  of  passengers  or  express  matter,  or  freight 
of  any  kind,  including  crude  oil,   or  for  the  transmission  of  tele 
phone    or   telegraph   messages,   or   for   the   production,   generation 
transmission,  delivery  or  furnishing  of  heat,  light,  water  or  power 
or    for   the    furnishing    of    storage    or    wharfage    facilities,    either 
directly   or   indirectly,    to   or   for   the    public,   and    every   common 
'carrier,  is   hereby  declared  to  be  a  public  utility  subject  to  such 
control  and  regulation  by  the  railroad  commission  as  may  be  pro- 
vided by  the  legislature,  and  every  class  of  private  corporations, 
individuals,    or   associations    of   individuals   hereafter   declared   by 
the  legislature   to  be  public  utilities   shall  likewise  be   subject   to 
such   control  and   regulation.     The   railroad  commission   shall   have 
and  exercise  such  power  and  jurisdiction  to  supervise  and  regulate 
public  utilities,  in  the  state  of  California,  and  to  fix  the  rates  to 
be    charged    for    commodities    furnished,    or   services    rendered    by 
public   utilities  as   shall   be   conferred   upon   it  by   the  legislature, 
and   the  right  of  the  legislature  to   confer  powers  upon   the   rail- 
road  commission  respecting  public   utilities  is   hereby   declared   to 


Art.  XII,  §  23  CONSTITUTION  OF  1879.  508 

be  plenary  and  to  be  unlimited  by  any  provision  of  this  Consti- 
tution. 

Trom  and  after  the  passage  by  the  legislature  of  laws  confer- 
ring powers  upon  the  railroad  commission  respecting  public  utili- 
ties, all  powers  respecting  such  public  utilities  vested  in  boards 
of  supervisors,  or  municipal  councils,  or  other  governing  bodies  of 
the  several  counties,  cities  and  counties,  cities  and  towns,  in  this 
state,  or  in  any  commission  created  by  law  and  existing  at  the 
time  of  the  passage  of  such  laws,  shall  cease  so  far  as  such  powers 
shall  conflict  with  the  powers  so  conferred  upon  the  railroad  com- 
mission; provided,  however,  that  this  section  shall  not  affect  such 
powers  of  control  over  any  public  ufility  vested  in  any  city  and 
county,  or  incorporated  city  or  town  as,  at  an  election  to  be  held 
pursuant  to  laws  to  be  passed  hereafter  by  the  legislature,  a  major- 
ity of  the  qualified  electors  voting  thereon  of  such  city  and  county, 
or  incorporated  city  or  town,  shall  vote  to  retain,  and  until  such 
election  such  powers  shall  continue  unimpaired;  but  if  the  vote  so 
taken  shall  not  favor  the  continuation  of  such  powers  they  shall 
thereafter  vest  in  the  railroad  commission  as  provided  by  law; 
and  provided,  further,  that  where  any  such  city  and  county  or 
incorporated  city  or  town  shall  have  elected  to  continue  any  pow- 
ers respecting  public  utilities,  it  may,  by  vote  of  a  majority  of  its 
qualified  electors  voting  thereon,  thereafter  surrender  such  powers 
to  the  railroad  commission  in  the  manner  to  be  prescribed  by  the 
legislature;  or  if  such  municipal  corporation  shall  have  surren- 
dered any  powers  to  the  railroad  commission,  it  may,  by  like  vote, 
thereafter  reinvest  itself  with  such  power.  Nothing  in  this  sec- 
tion shall  be  construed  as  a  limitation  upon  any  power  conferred 
upon  the  railroad  commission  by  any  provision  of  this  Constitution 
now  existing  or  adopted  concurrently  herewith.  (Amendment  ap- 
proved October  10,  1911.) 

[OEIGINAL  SECTION.] 
Sec.  23.  Until  the  legislature  shall  district  the  state,  the  fol- 
lowing shall  be  the  railroad  districts:  The  first  district  shall  be 
composed  of  the  counties  of  Alpine,  Amador,  Butte,  Calaveras, 
Colusa,  Del  Norte,  El  Dorado,  Humboldt,  Lake,  Lassen,  Mendocino, 
Modoc,  Napa,  Nevada,  Placer,  Plumas  Sacramento,  Shasta,  Sierra, 
Siskiyou,  Solano,  Sonoma,  Sutter,  Tehama,  Trinity,  Yolo,  and 
Yuba,  from  which  one  railroad  commissioner  shall  be  elected.  The 
second  district  shall  be  composed  of  the  counties  of  Marin,  San 
Francisco,  and  San  Mateo,  from  which  one  railroad  commissioner 
shall  be  elected.  The  third  district  shall  be  composed  of  the  coun- 
ties of  Alameda,  Contra  Costa,  Fresno,  Inyo,  Kern,  Los  Angeles, 
Mariposa,  Merced,  Mono,  Monterey,  San  Benito,  San  Bernardino, 
San  Diego,  San  Joaquin,  San  Luis  Obispo,  Santa  Barbara,  Santa 
Clara,  Santa  Cruz,  Stanislaus,  Tulare,  Tuolumne,  and  Ventura, 
from  which  one  railroad  commissioner  shall  be  elected. 

RAILROAD  COMMISSION. — Under  this  section  as  amended  in 
1911  and  section  82  of  the  Public  Utilities  Act  of  1911,  the  powers  of 
control  over  existing  public  utilities  which  were  vested  in  any  city 


509  CORPORATIONS.  Art.  XII,  §  23 

at  the  time  of  the  adoption  of  the  amendment  and  of  the  taking  effect 
of  said  Public  Utilities  Act  of  1911  are  still  retained  by  such  city, 
and  do  not  pass  to  the  railroad  commission  until  the  city  by  an  elec- 
tion surrenders  these  powers  to  the  commission.  (Title  Guarantee  etc. 
Co.  V.  Eailroad  Commission,  168  Cal.  295,  142  Pac.  878.) 

Section  50  of  the  Public  Utilities  Act  (Stats.  (Ex.  Sess.)  1911, 
p.  43),  requiring  public  utilities  to  obtain  a  certificate  of  public  con- 
venience and  necessity  from  the  railroad  commission  before  beginning 
any  new  construction,  does  not  go  beyond  the  powers  of  supervision 
and  regulation  which  the  legislature  may,  under  this  section,  confer 
on  the  railroad  commission,  nor  does  it  constitute  an  improper  delega- 
tion of  legislative  functions  to  the  commission.  (Oro  Electric  Corp. 
V.  Eailroad  Commission,  169  Cal.  466,  147  Pac.  118.) 

Under  this  section  and  section  82  of  the  Public  Utilities  Act,  the 
cities  are  limited  to  the  power  which  they  had  on  March  23,  1912, 
and  no  extension  of  this  power  may  be  had.  (In  re  Application  of 
James  A.  Murray,  2  C.  R.  C.  464,  502.) 

The  legislature  having,  pursuant  to  this  section,  provided  (c.  40, 
Stats.  1911,  Extra  Session)  a  complete  scheme  for  presenting  to  the 
voters  the  question  of  the  retention  or  relinquishment  of  powers  over 
utilities  vested  in  municipalities,  such  powers  cannot  be  divested 
through  the  adoption  of  a  charter  amendment,  but  must  be  brought 
about  under  the  scheme  provided  by  the  legislature.  (Long  Beach 
Chamber  of  Commerce  v.  Pacific  Electric  Ry.  Co.,  2  C.  R.  C.  455,  458; 
3  C.  R.  C.  611,  613.) 

Under  this  section  and  subdivision  X  of  section  2  of  the  Public 
Utilities  Act,  a  water  company  is  subject  to  the  jurisdiction  of  the 
railroad  commission,  even  though  it  is  not  serving  the  public  with 
water,  but  is  only  serving  water  for  use  on  lands  owned  or  sold  by 
it,  and  even  though  its  articles  of  incorporation  specifically  limit  it 
to  such  distribution  of  water,  and  even  though  it  is  only  distributing 
water  under  contracts  which  fix  the  price  to  be  paid.  (In  re  Rates 
and  Service  of  San  Gorgonio  Water  Co.,  2  C.  R.  C.  706,  711.) 

Under  the  provisions  of  this  section  as  amended  on  October  10, 
1911,  public  utilities  in  municipalities  incorporated  after  the  effective 
date  of  the  Public  Utilities  Act,  March  23,  1912,  are  subject  to  the 
jursdietion  of  the  railroad  commission.  (In  re  Rates  and  Service  of 
San  Gorgonio  Water  Co.,  2  C.  R.  C.  706,  709.) 

Ti#e  power  of  regulating  the  ditch  of  a  water  and  irrigation  com- 
pany in  a  municipality  which  has  not  voted  to  transfer  its  powers 
over  public  utilities  to  the  railroad  commission  is  vested  exclusively 
in  the  authorities  of  such  municipality.  (Santa  Paula  v.  Santa  Clara 
Water  &  Irr.  Co.,  3  C.  R.  C.  143,  144.) 

The  railroad  commission  under  this  section  and  the  Public  Utilities 
Act  has  jurisdiction  to  establish  the  fare  to  be  charged  by  a  street 
railroad  or  any  other  railroad  between  a  point  within  the  city  limits 
and  a  point  outside  of  the  city  limits.  (Ramos  v.  San  Francisco- 
Oakland  Terminal  Rys.,  3  C.  R.  C.  800,  802.) 

Under  this  section,  the  Public  Utilities  Act,  and  chapter  80  of  the 
Laws  of  1913,  the  railroad  commission  has  the  power,  after  notice 
and   hearing,   to   compel   a   water   utility   to   extend   its   mains   at   its 


Art.  XII,  §  23a        constitution  of  1879.  510 

own  expense  in  all  territory  in  this  state  other  than  incorporated 
cities  and  towns  in  which  this  power  may  vest  by  virtue  of  specifie 
provisions  of  their  charters.  (Dooley  v.  People's  Water  Co.,  3  C.  R. 
C.   948,   960.) 

When  a  city  supplies  water  to  consumers  outside  of  its  limits,  such 
service  is  subject  to  the  jurisdiction  of  the  railroad  commission.  (In 
re  Application  of  San  Diego,  4  C.  E.  C.  902,  905.) 

A  utility  selling  electric  energy  to  everyone  who  desires  it  is  a 
public  utility  subject  to  the  jurisdiction  of  the  railroad  commission, 
even  though  it  buys  its  electric  energy  from  another  company  under 
a  contract.  (Calistoga  Electric  Co.  v.  Napa  Valley  Electric  Co.,  5 
C.   R.   C.   84,   85.) 

A  company  which  has  agreed  by  contract  and  otherwise  to  deliver 
water  to  mutual  companies,  corporations,  municipalities  and  an  in- 
dividual, and  has  by  these  means  publicly  held  itself  out  as  serving 
a  certain  territory,  and  is  such  territory's  only  source  of  supply  of 
water  for  domestic  and  irrigation  purposes,  is  a  public  utility  water 
company  subject  to  the  jurisdiction  of  the  railroad  commission. 
(Becker  v.  Holabird,  5  C.  R.  C.  153,  167.) 

A  water  company  whose  by-laws  do  not  limit  the  delivery  of  water 
to  stockholders  only  or  to  specific  districts,  which  owns  a  system  of 
canals  and  ditches  and  operates  same  for  compensation,  and  which, 
while  not  owning  any  water  and  distributing  water  simply  as  the 
agent  of  riparian  owners,  is  acting  as  a  common  carrier  for  all  land 
owners,  and  owns  certain  shares  of  stock  of  a  water  company  and 
of  the  waters  represented  thereby,  which  waters  it  distributes  for 
compensation,  is  a  public  utility  subject  to  the  jurisdiction  of  the 
railroad  commission.  (Ferrasci  v.  Empire  Water  Co.,  6  C  R  C  309 
321.) 

Where  only  the  safety  and  convenience  of  the  public  using  the 
street  where  it  crosses  over  a  railroad  is  involved,  and  a  municipality 
had  jurisdiction  over  such  matter  prior  to  March  23,  1912,  the  rail- 
road commission  has  no  jurisdiction  to  compel  a  separation  of  grades 
at  the  crossing  involved.  (Daum  v.  Southern  Pacific  Co.,  6  C  R  C 
946,  949.) 

Power  of  state  or  public  service  commission  to  compel  public  ser- 
vice corporations  to  make  connections  with  each  other.  See 
note,  Ann.  Cas.  1915C,  850. 

Railroad  commission — Power  in  eminent  domain. 

Sec.  23a.  The  railroad  commission  shall  have  and  exer- 
cise such  power  and  jurisdiction  as  shall  be  conferred  upon 
it  by  the  legislature  to  fix  the  just  compensation  to  be  paid 
for  the  taking  of  any  property  of  a  public  utility  in  emi- 
nent domain  proceedings  by  the  state  or  any  county,  city 
and  county,  incorporated  city  or  town,  or  municipal  water 
district,  and  the  right  of  the  legislature  to  confer  such  pow- 
ers upon  the  railroad  commission  is  hereby  declared  to  be 


I 


I 


511  CORPORATIONS.  Art.  XII,  §  24 

plenary  and  to  be  unlimited  by  any  provision  of  this  Con- 
stitution. All  acts  of  the  legislature  heretofore  adopted, 
which  are  in  accordance  herewith,  are  hereby  confirmed 
and  declared  valid.  (New  section  added  by  amendment 
adopted  November  3,  1914.) 

RAILROAD  COMMISSION— Power  in  eminent  domain.— The  ef- 
fect of  this  provisiou  is  to  remove  all  possible  doubt  concerning  the 
validity  of  sections  47  and  70  of  the  Public  Utilities  Act  as  far  as 
the  Constitution  of  California  is  concerned.  (In  re  Application  of 
Marin  Municipal  Water  District,  6  C.  R.  C.  507,  509.) 

The  purpose  of  this  section  was  to  secure  the  services  in  the  con- 
demnation of  the  property  of  public  utilities  not  only  of  commis- 
sioners, but  also  of  the  trained  employees  of  the  railroad  commission, 
who  might  testify  in  cases  of  this  character  and  give  the  commission 
the  advantage  of  having  testimony  presented  in  behalf  of  the  state. 
(In  re  Application  of  Marin  Municipal  Water  District,  G  C.  R.  C. 
507,  515.) 

Legislature  to  pass  laws  to  enforce  this  article. 

Sec.  24.  The  legislature  shall  pass  all  laws  necessary  for 
the  enforcement  of  the  provisions  of  this  article. 


Art.  XIII,  §  1        CONSTITUTION  OF  1879.  512 

ARTICLE  XIII. 

REVENUE  AND  TAXATION. 

§     1,     Taxation  to  be  in  proportion  to  value. 

§     la.  Colleges  exempt  from  taxation. 

§     1^.  United  States  army,  navy,  marine  and  revenue  service. 

§     1^.  Churches  exempt  from  taxation. 

§     If.  Bonds  of  state  and  municipalities  exempt  from  taxation. 

§     2.     Land  and  improvements  to  be  separately  assessed. 

§     3.     Sectionized  and  unsectionized  land,  how  assessed. 

§     4.     Securities,  taxable.     (Eepealed.) 

§     4a.  Vessels  exempt  from  taxation. 

§     5.     Contract  of  borrower  to  pay  tax  on  loan  void, 

§     6.     Power  of  taxation  cannot  be  surrendered. 

§     7.     Payment  of  taxes  by  installments. 

§     8.     Annual  statement  of  property  to  be  given. 

§     9.     State  board  of  equalization. 

§  10.     Property,  where  assessed. 

§  lOJ.  Personal  property  to  extent  of  $100  exempt. 

§  11.     Income  taxes. 

§   12.     Poll  tax. 

§  12J,  Young  trees  and  vines  exempt  from  taxation. 

§  13,     Laws  to  be  passed  by  legislature. 

§  14.     Taxation  for  state  purposes. 

Taxation  to  be  in  proportion  to  value. 

Section  1.  All  property  in  the  state  except  as  otherwise 
in  this  Constitution  provided,  not  exempt  under  the  laws 
of  the  United  States,  shall  be  taxed  in  proportion  to  its 
value,  to  be  ascertained  as  provided  by  law,  or  as  herein- 
after provided.  The  word  "property,"  as  used  in  this  arti- 
cle and  section,  is  hereby  declared  to  include  moneys,  cred- 
its, bonds,  stocks,  dues,  franchises,  and  all  other  matters 
and  things,  real,  personal,  and  mixed,  capable  of  private 
ownership ;  provided,  that  a  mortgage,  deed  of  trust,  con- 
tract, or  other  obligation  by  which  a  debt  is  secured  when 
land  is  pledged  as  security  for  the  payment  thereof,  to- 
gether Avith  the  money  represented  by  such  debt,  shall  not 
be  considered  property  subject  to  taxation;  and  further 
provided,  that  property  used  for  free  public  libraries  and 
free  museums,  growing  crops,  property  used  exclusively  for 
public  schools,  and  such  as  may  belong  to  the  United  States, 
this  state,  or  to  any  county,  city  and  county,  or  municipal 
corporation  within  this  state  shall  be  exempt  from  taxa- 


513  REVENUE  AND  TAXATION.  Art.  XITI,  §  1 

tion,  except  such  lands  and  the  improvements  thereon  lo- 
cated outside  of  the  county,  city  and  county  or  municipal 
corporation  owning  the  same  as  were  subject  to  taxation  at 
the  time  of  the  acquisition  of  the  same  by  said  county,  city 
and  county  or  municipal  corporation;  provided,  that  no 
improvements  of  any  character  whatever  constructed  by 
any  county,  city  and  county  or  municipal  corporation  shall 
be  subject  to  taxation.  All  lands  or  improvements  thereon, 
l)Glonging  to  any  county,  city  and  county  or  municipal  cor- 
poration, not  exempt  from  taxation,  shall  be  assessed  by 
the  assessor  of  the  county,  city  and  county  or  municipal 
corporation  in  which  said  lands  or  improvements  are  lo- 
cated, and  said  assessment  shall  be  subject  to  review,  equal- 
ization and  adjustment  by  the  state  board  of  equalization. 
The  legislature  may  provide,  except  in  the  case  of  credits 
secured  by  mortgage  or  trust  deed,  for  a  deduction  from 
credits  of  debts  due  to  bona  fide  residents  of  this  state. 
(Amendment  adopted  November  3,  1914.) 

[AMENDMENT  OF  1910.] 
Section  1.  All  property  in  the  state  except  as  otherwise  in  this 
Constitution  provided,  not  exempt  under  the  laws  of  the  United 
States,  shall  be  taxed  in  proportion  to  its  value,  to  be  ascertained 
as  provided  by  law,  or  as  hereinafter  provided.  The  word  "prop- 
erty," as  used  in  this  article  and  section,  is  hereby  declared  to 
include  moneys,  credits,  bonds,  stocks,  dues,  franchises,  and  all 
other  matters  and  things,  real,  personal,  and  mixed,  capable  of 
private  ownership;  provided,  that  a  mortgage,  deed  of  trust,  con- 
tract, or  other  obligation  by  which  a  debt  is  secured  when  land  is 
pledged  as  security  for  the  payment  thereof,  together  with  the 
money  represented  by  such  debt,  shall  not  be  considered  property 
subject  to  taxation;  and  further  provided,  that  property  used  for 
free  public  libraries  and  free  museums,  growing  crops,  property 
used  exclusively  for  public  schools,  and  such  as  may  belong  to  the 
United  States,  this  state,  or  to  any  county  or  municipal  corpora- 
tion within  this  state  shall  be  exempt  from  taxation.  The  legisla- 
ture  may  provide,  except  in  the  case  of  credits  secured  by 
mortgage  or  trust  deed,  for  a  deduction  from  credits  of  debts  due 
to  bona  fide  residents  of  this  state.  (Amendment  adopted  Novem- 
ber 8,  1910.) 

[AMENDMENT   OF  1894.] 

Section  1.     All  property  in  the  state,  not  exempt  under  the  laws 

of  the  United  States  shall  be  taxed  in  proportion  to  its  value,  to 

be  ascertained  as  provided  by  law.     The  word  "property,"  as  used 

in  this  article  and  section,  is  hereby  declared  to  include   moneys, 

Constitution — 33 


Art.  XIII,  §  1         CONSTITUTION   OF  1879.  514 

credits,  bonds,  stocks,  dues,  franchises,  and  all  other  matters  and 
things,  real,  personal,  and  mixed,  capable  of  private  ownership; 
provided  that  property  used  for  free  public  libraries  and  free 
museums,  growing  crops,  property  used  exclusively  for  public 
schools,  and  such  as  may  belong  to  the  United  States,  this  state, 
or  to  any  county  or  municipal  corporation  within  this  state,  shall 
be  exempt  from  taxation.  The  legislature  may  provide,  except  in 
case  of  credits  secured  by  mortgage  or  trust  deed,  for  a  deduction 
from  credits  of  debts  due  to  bona  fide  residents  of  this  state. 
(Amendment  adopted  November  6,  1894.) 

[ORIGINAL  SECTION.] 
Section  1.  All  property  in  the  state,  not  exempt  under  the  laws 
of  the  United  States,  shall  be  taxed  in  proportion  to  its  value,  to 
be  ascertained  as  provided  by  law.  The  word  "property,"  as  used 
in  this  article  and  section,  is  hereby  declared  to  include  moneys, 
credits,  bonds,  stocks,  dues,  franchises,  and  all  other  matters  and 
things,  real,  personal,  and  mixed,  capable  of  private  ownership; 
provided,  that  growing  crops,  property  used  exclusively  for  public 
schools,  and  such  as  may  belong  to  the  United  States,  this  state,  or 
to  any  county  or  municipal  corporation  within  this  state,  shall  be 
exempt  from  taxation.  The  legislature  may  provide,  except  in  the 
case  of  credits  secured  by  mortgage  or  trust  deed,  for  a  deduction 
from  credits  of  debts  due  to  bona  fide  residents  of  this  state. 

TAXATION — What  is. — The   provisions   of  this   article   are   limita- 
tions upon  the  power  of  the  legislature,  and  are  mandatory.     (People 
V.  McCreery,  34  Gal.  432;  People  v.  Gerke,  35  Cal.  677.) 
What  constitutes  a  tax.     See  note,  8  Am.  St.  Eep.  506. 
Purposes  for  which  taxes  may  be  imposed.     See  note,  16  Am.  St. 

Rep.  365. 
Classification  of  subjects  of  taxation  as  affected  by  constitutional 
requirement  of  uniformity.     See  note,  1  Ann.  Cas.  638. 

This  section  is  not  self-executing,  but  merely  fixes  the  liability  of 
property  to  taxation,  and  the  standard  upon  which  it  is  based,  but 
confides  the  duty  of  prescribing  the  machinery  by  which  to  ascertain 
the  value  to  the  legislature.  (McHenry  v.  Downer,  116  Cal.  20,  45 
L.  R.  A.  737,  47  Pac.  779;  De  Witt  v.  Hays,  2  Cal.  46B,  56  Am.  Dec. 
352.) 

To  make  an  outlying  school  district  a  part  of  a  city  high  school  dis- 
trict to  the  extent  of  making  it  liable  for  taxes  imposed  by  the  muni- 
cipality of  which  it  was  not  a  part  and  in  the  election  of  whose 
taxing  officers  it  had  no  voice,  would  violate  the  cardinal  rule  that 
there  shall  be  no  taxation  without  representation.  (Mooney  v.  Board 
of  Supervisors,  2  Cal.  App.  65,  83  Pac.  165.) 

It  is  a  cardinal  principle  that  there  shall  be  no  taxation  without 
representation.  (Mooney  v.  Board  of  Supervisors,  2  Cal.  App.  65,  83 
Pac.  165.) 

The  power  of  the  legislature  in  the  matter  of  taxation  is  unlimited, 
except  as  restricted  by  constitutional  provisions,  and  extends  to  pro- 
ceedings for   assessments  for   local  improvements  upon   any  basis   of 


515  REVENUE  AND  TAXATION.  Art.  XIII,  §  1 

apportionment  which  the  legislature  may  select;  and  the  apportion- 
ment does  not  depend  upon  any  special  benefit  to  the  taxpayer.  (In 
re  Madera  Irr.  Dist.,  92  Cal.  296,  27  Am.  St.  Rep.  106,  14  L.  R.  A.  755, 
28  Pac.  272,  675.) 

The  provisions  of  this  article  have  no  application  to  assessments 
for  local  improvements.  (Turlock  Irr.  Dist.  v.  Williams,  76  Cal.  360, 
18  Pac.  379.) 

This  provision  only  applies  to  direct  taxation  on  property  as  such. 
(People  V.  Coleman,  4  Cal.  46,  60  Am.  Dec.  581.) 

The  taxing  power  is  an  incident  of  sovereignty,  the  exercise  of 
which  belongs  exclusively  to  every  state,  and  attaches  alike  upon 
everything  which  comes  within  its  jurisdiction.  (People  v.  Coleman, 
4  Cal.  46,  60  Am.  Dec.  581.) 

A  tax  is  a  charge  upon  persons  or  property,  to  raise  money  for  pub- 
lic purposes.  It  is  not  founded  upon  contract  and  does  not  establish 
the  relation  of  debtor  and  creditor,  between  the  taxpayer  and  the 
state.     (Perry  v.  Washburn,  20  Cal.  318.) 

The  words  "taxation"  and  "taxed"  relate  to  such  general  taxes  upon 
all  property  as  are  levied  to  defray  the  ordinary  expenses  of  the  state, 
county,  town,  and  municipal  governments,  and  not  to  assessments 
levied  on  lots  fronting  on  a  street  to  pay  the  expense  of  its  improve- 
ment.    (Emery  v.  San  Francisco  Gas  Co.,  28  Cal.  345.) 

The  words  "taxation"  and  "assessments"  do  not  have  the  same  sig- 
nification.    (Taylor  v.  Palmer,  31  Cal.  240.) 

"Taxation"  is  the  power  to  impose  taxes  upon  the  property  of  the 
citizen  for  the  support  of  the  government.  (Tajior  v.  Palmer,  31 
Cal.  240;  People  v.  McCreery,  34  Cal.  432.) 

The  rate  of  taxation  for  state  purposes  must  be  uniform  throughout 
the  state.  (People  v.  McCreery,  34  Cal.  432.  People  v.  Coleman,  4 
Cal.  46,  60  Am.  Dec.  581;  High  v.  Shoemaker,  22  Cal.  363,  overruled.) 

A  charge  by  the  gauger  of  the  port  of  San  Francisco  upon  wine,  for 
services  as  gauger,  is  not  a  tax.     (Addison  v.  Saulnier,  19  Cal.  82.) 

The  provision  of  the  fee  bill  of  1895,  requiring  the  payment  of  one 
dollar  for  each  one  thousand  dollars  in  excess  of  three  thousand  dol- 
lars of  the  appraised  value  of  an  estate  imposes  a  tax,  and  is  in  vio- 
lation of  this  section  in  imposing  an  extraordinary  tax  in  addition 
to  the  equal  and  uniform  tax  to  which  alone  property  is  liable. 
(Fatjo  v.  Pfister,  117  Cal.  83,  4'8  Pac.  1012.). 

The  act  of  1893,  imposing  a  tax  of  five  dollars  on  every  hundred 
dollars  of  the  market  value  of  property  collaterally  inherited,  be- 
queathed, or  devised,  where  its  value  exceeds  five  hundred  dollars,  is 
constitutional.     (In  re  Wilmerding,  117  Cal.  281,  49  Pac.  181.) 

The  collateral  inheritance  tax  is  not  subject  to  the  provision  that  all 
property  shall  be  taxed  in  proportion  to  its  value,  as  it  is  in  the 
nature  of  an  excise  tax.  (In  re  Wilmerding,  117  Cal.  281,  49  Pac. 
181.) 

Where  property  is  sold  for  taxes  to  the  state  and  the  owner  does 
not  redeem,  there  is  no  constitutional  objection  to  the  state  acquiring 
the  title  free  from  all  equities,  which  it  can  sell  and  convey  to  the 
highest  bidder  for  cash  and  which  will  be  good  as  against  the  former 
owner.     (Chapman  v.  Zobelein,  19  Cal.  App.  132,  124  Pac.  1021.) 


Art.  XIII,  §  1         CONSTITUTION  OF  1879.  516 

Property. — Bonds  of  foreign  corporations  are  assessable  in  the  state 
of  the  owner's  domicile.  (Estate  of  Fair,  128  Cal.  607,  61  Pac.  184; 
Mackay  v.  San  Francisco,  128  Cal.  678,  61  Pac.  382.) 

A  seat  in  a  stock  exchange  board  is  not  taxable  property.  (San 
Francisco  v.  Anderson,  103  Cal.  69,  42  Am.  St.  Rep.  98,  36  Pac.  1034.) 

A  mere  right  of  way  for  a  pipe-line  of  a  water  company,  entirely 
unconnected  with  any  privilege  to  take  tolls,  is  not  a  franchise. 
(Spring  Valley  W.  W.  v.  Barber,  99  Cal.  36,  21  L.  R.  A.  416,  33  Pac. 
735.) 

Fruit  trees  are  not  growing  crops  within  the  meaning  of  this  sec- 
tion, and  are  subject  to  taxation.  (Cottle  v.  Spitzer,  65  Cal.  4o6,  52 
Am.  Rep.  305,  4  Pac.  435.) 

Stock  of  a  California  corporation,  whose  tangible  property  is  situ- 
ated in  another  state,  is  taxable  in  this  state  in  the  possession  of  a 
resident  of  this  state.  (City  and  County  of  San  Francisco  v.  Flood, 
64  Cal.  504,  2  Pac.  264;  San  Francisco  v.  Fry,  63  Cal.  470.) 

Stock  in  a  corporation  whose  property  is  situated  out  of  the  state  is 
assessable  in  this  state.  The  Constitution  is  not  to  be  construed  to 
mean  that  "stocks"  are  not  to  be  taxed  when  they  represent  property 
situated  out  of  the  state.  (Caufield  v.  County  of  Los  Angeles,  157 
Cal.  617,  108  Pac.  705.) 

The  assessment  of  the  stock  of  a  corporation  must  necessarily  in- 
■clude  every  element  of  value  of  its  property,  including  its  goodwill, 
franchise,  and  dividend  earning  power.  (Crocker  v.  Scott,  149  Cal. 
575,  87  Pac.  102.) 

The  possessory  right  to  a  mining  claim  is  properly  assessed  as  real 
estate.  (Bakersfield  &  Fresno  Oil  Co.  v.  Kern  County,  144  Cal.  148, 
77  Pac.  892.) 

A  vessel  registered  out  of  the  state,  and  never  here  except  tran- 
siently in  the  course  of  her  voyages  for  the  purpose  of  receiving  and 
discharging  cargo,  is  not  "in  the  state"  within  the  meaning  of  this 
section,  although  owned  in  part  by  residents  of  this  state.  (San 
Francisco  v.  Talbot,  63  Cal.  485.) 

A  vessel  is  taxable  at  its  "home  port"  as  defined  in  section  4141 
of  the  United  States  Revised  Statutes.  (Olson  v.  San  Francisco,  148 
Cal.  80,  113  Am.  St.  Rep.  191,  7  Ann.  Cas.  443,  2  L.  R.  A.  (N.  S.)  197, 
82  Pac.  850.) 

A  franchise  to  collect  r^tes  for  water  is  taxable  under  this  section. 
(Spring  Valley  W.  W.  v.  Schottler,  62  Cal.  69.) 

The  franchise  of  a  railroad  company  is  property  subject  to  taxation 
and  is  not  exempt  by  reason  of  its  being  a  means  or  instrument  em- 
ployed by  Congress  to  carry  into  operation  the  powers  of  the  general 
government.  (Central  Pac.  R.  R.  Co.  v.  State  Board  of  Equalization, 
60  Cal.  35.) 

A  franchise  merely  to  be  a  corporation  is  property,  which  is  assess- 
able to  the  corporation.  (Bank  of  California  v.  San  Francisco,  142 
Cal.  276,  100  Am.  St.  Rep.  130,  64  L.  R.  A.  918,  75  Pac.  832.) 

As  to  the  proper  method  of  arriving  at  the  value  of  a  franchise  to 
be  a  corporation  for  the  purpose  of  taxation,  see  Bank  of  California 
v.  San  Francisco,  142  Cal.  276,  100  Am,  St.  Rep.  130,  64  L.  R.  A.  918, 
75   Pac.   832. 


517  REVENUE  AND  TAXATION.  Art.  XIII,  §  1 

The  creative  franchise  to  be  a  corporation  is  taxable.  (San  Joa- 
quin etc.  Irr.  Co.  v.  Merced  County,  2  Cal.  App.  593,  84  Pac.  285.) 

Franchises  are  properly  subject  to  taxation.  (San  Joaquin  etc.  Irr. 
Co.  V.  Merced  County,  2  Cal.  App.  593,  84  Pac.  285.) 

Taxation  of  franchises.     See  note,  13J  Am.  St.  Kep.  867. 

Checks  drawn  upon  the  treasurer  of  the  United  States,  payable  on 
demand,  as  a  mode  of  paying  an  obligation  of  the  United  States,  are 
taxable  as  solvent  credits.  (Hibernia  etc.  Soc.  v.  San  Francisco,  139 
Cal.  205,  96  Am.  St.  Eep.  100,  5  L.  E.  A.  (N.  S.)  608,  72  Pac.  920.) 

The  franchise  of  a  foreign  banking  corporation  to  do  business  in 
the  state  of  California  is  taxable.  (London  &  San  Francisco  Bank 
v.  Block,  117  Fed.  900.) 

Where  a  foreign  banking  corporation  with  branches  in  other  states 
has  credits  on  the  books  of  its  office  in  California,  consisting  of  sums 
paid  to  the  other  branches  for  their  benefit,  and  charged  to  them  as 
mere  matter  of  bookkeeping,  without  any  promise  or  obligation  on 
the  part  of  the  debited  agencies  to  return  the  money  to  the  California 
office,  such  credits  are  not  taxable  in  California.  (London  &  San 
Francisco  Bank  v.  Block,  136  Fed.  138,  69  C.  C.  A.  136.) 

State  taxation  of  national  banks.     See  note,  69  Am.  St.  Rep.  38. 

The  capital  or  capital  stock  of  a  corporation  is  taxable  against  the 
corporation.     (San  Francisco  v.  Spring  Valley  W.  W.,  54  Cal.  571.) 

Personal  property  in  the  state,  owned  by  nonresidents,  and  upon 
which  they  pay  taxes  in  the  state  of  their  domicile,  is  taxable  in  this 
state.     (Minturn  v.  Hays,  2  Cal.  590,  56  Am.  Dec.  366.) 

A  municipal  corporation  has  no  power  to  impose  a  license  tax  upon 
a  railroad  company  engaged  in  interstate  commerce,  and  the  mere 
fact  that  the  tax  is  imposed  on  a  branch  line  does  not  render  the  tax 
valid,  where  the  branch  is  a  part  of  the  transcontinental  line.  (San 
Bernardino  v.  Southern  Pac.  Co.,  107  Cal.  524,  29  L.  E.  A.  327,  40 
Pac.  796.) 

The  possession  of  and  claim  to  public  land  is  property.  (People 
V.  Black  Diamond  etc.  Min.  Co.,  37  Cal.  54;  People  v.  Cohen,  31  Cal. 
210.) 

The  word  "property"  is  used  in  its  ordinary  and  popular  sense,  and 
includes  not  only  visible  and  tangible  property,  but  also  choses  in 
action,  such  as  solvent  debts  secured  by  mortgage.  (People  v.  Edd.y, 
43  Cal.  331,  13  Am.  Eep.  143;  Lick  v.  Austin,  43  Cal.  590;  Savings 
etc.  Soc.  v.  Austin,  46  Cal.  415;  People  v.  Ashbury,  46  Cal.  523;  San 
Francisco  v.  La  Societe  etc.,  131  Cal.  612,  63  Pac.  1016.  But  see  Bank 
of  Mendocino  v.  Chalfant,  51  Cal.  369,  471;  People  v.  Hibernia  Bank, 
51  Cal.  243,  21  Am.  Eep.  704.) 

This  is  true  although  the  debts  are  secured  by  pledge  of  property 
exempt  from  taxation.  (Security  Sav.  Bank  v.  San  Francisco,  132 
Cal.  599,  64  Pac.  898.) 

Money  is  property  subject  to  taxation.  (People  v.  Dunn,  59  Cal. 
328.) 

The  holder  of  solvent  credits  secured  by  collateral  security  of  per- 
sonal property  is  entitled  to  have  his  assessment  upon  such  credits 
reduced  by  the  amount  of  his  indebtedness  to  bona  fide  residents  of 
the  state,  contracts  of  security  on  personal  property  not  being  mort- 


Art.  XIII,  §  1         CONSTITUTION  OF  1879.  518 

gages  or  deeds  of  trust  within  the  meaning  of  those  words  in  the 
clause  excepting  such  credits  from  the  deduction  allowed  of  debts 
due  bona  fide  residents  of  the  state.  (Bank  of  Willows  v.  County  of 
Glenn,  155   Cal.  352,  101  Pac.  13.) 

Bonds  owned  by  a  foreign  insurance  company  doing  business  in 
this  state  and  deposited  with  a  banker  in  pursuance  to  law  are  tax- 
able.    (People  V.  Home  Ins.  Co.,  29  Cal.  533.) 

The  estate  of  a  lessee  in  lands  overlying  oil  bearing  strata,  who 
has  the  right  to  the  oil  produced  thereon  upon  paying  a  royalty  to 
the  lessor,  may  be  separately  assessed  for  purposes  of  taxation  to  the 
lessee,  and  the  remainder  of  the  entire  estate  in  the  land  may  be 
separately  assessed  to  the  lessor.  (Graciosa  Oil  Co.  v.  Santa  Bar- 
bara County,  155  Cal.  140,  20  L.  R.  A.  (N.  S.)  211,  99  Pac.  483.) 

Public  property. — Public  property  is  not  taxable.  (People  v.  Aus- 
tin, 47  Cal.  353;  People  v.  McCreery,  34  Cal.  432;  People  v.  Doe  G. 
1,034,  36  Cal.  220.) 

A  railroad  corporation  cannot  claim  an  exemption  of  its  property 
lying  within  the  state  from  state  taxation,  because  the  corporation 
has  been  subsequently  employed  by  the  federal  government  in  the 
carriage  of  mails,  munitions  of  war,  etc.  (People  v.  Central  Pac.  E. 
K.  Co.,  43  Cal.  398.) 

A  railroad  company  organized  under  the  laws  of  this  state  to  con- 
struct and  operate  a  railroad  in  this  state,  which  has  subsequentl}' 
received  from  the  United  States  a  franchise  for  the  same  purpose, 
may  be  assessed  upon  its  franchise  derived  from  the  state.  (People 
V.  Central  Pac.  E.  E.  Co.,  105  Cal.  576,  38  Pac.  905;  affirmed.  Central 
Pac.  R.  R.  Co.  v.  People,  162  U.  S.  91,  40  L.  Ed.  903,  16  Sup.  Ct.  Eep. 
766;  Colusa  County  v.  Glenn  County,  124  Cal.  498,  57  Pac.  477.  But 
see  People  v.  Central  Pac.  R.  E.  Co.,  83  Cal.  393,  23  Pac.  303.) 

An  act  exempting  school  land  and  lands  of  the  United  States  from 
taxation  does  not  render  the  tax  unequal.  (High  v.  Shoemaker,  22 
Cal.  363.) 

A  mortgage  of  land,  executed  to  the  Eegents  of  the  University  of 
California,  to  secure  money  due  said  body,  and  the  interest  which  it 
thereby  holds  in  the  land,  is  the  property  of  the  state  within  the 
meaning  of  this  provision.  (Webster  v.  Board  of  Eegents,  163  Cal. 
705,  126  Pac.  974.) 

Bonds  of  the  United  States  are  not  subject  to  taxation.  (People 
V.  Home  Ins.  Co.,  29  Cal.  533.) 

State   taxation   of   federal   bonds   and   obligations.     See   notes,   4 
Ann.  Cas.  936. 

The  property  of  a  reclamation  district  is  public  property  exempt 
from  taxation.  (Eeclamation  Dist.  No.  551  v.  Sacramento  County, 
134  Cal.  477,  66  Pac.  668.) 

The  assessment  of  a  portion  of  a  street  is  void.  (Warren  v.  San 
Francisco,  150  Cal.  167,  88  Pac.  712.) 

A  county  ordinance  imposing  a  license  upon  the  Southern  Pacific 
Railroad  Company  for  carrying  persons  and  freight  for  hire  by  means 
of  railroad  cars  in  the  county,  is  void  as  a  tax  upon  the  use  of  the 
franchise  granted  by  the  United  States  government.  Both  the  fran- 
chise and  the  use  of  it  are  beyond  the  taxing  power  of  the  state. 
(San  Benito  Co.  v.  Southern  Pac.  E.  R.  Co.,  77  Cal.  518,  19  Pac.  827.) 


519  REVENUE  AND  TAXATION.  Art.  XIII,  §  1 

The  Western  Union  Telegraph  Company  is  one  of  the  instruments 
employed  by  the  United  States  government  for  carrying  into  effect 
its  sovereign  powers,  and  a  tax  upon  its  franchise  is  void.  (City  and 
County  of  San  Francisco  v.  Western  Union  Tel.  Co.,  96  Cal.  140,  17 
L.  E.  A.  301,  31  Pac.  10;  Western  Union  Tel.  Co.  v.  Visalia,  149  Cal. 
J44,  87  Pac.  1023.) 

Whether  or  not  a  federal  franchise  has  been  assessed  is  a  question 
of  fact,  and  conversations  with  members  of  the  board  of  equaliza- 
tion on  the  subject  are  not  admissible.  (People  v.  Central  Pac.  R.  R. 
Co.,  105  Cal.  576,  38  Pac.  905;  affirmed.  Central  Pac.  R.  R.  Co.  v. 
People,  162  U.  S.  91,  40  L.  Ed.  903,  16  Sup.  Ct.  Rep.  766.) 

Liability  to  state  taxation  of  United  States  property  granted  or 
sold  by  the  government  but  to  which  government  still  holds 
legal  title.     See  note,  11  Ann.  Cas.  391. 

Eight  of  state  to  tax  federal  franchise.  See  note,  17  Ann.  Cas. 
722. 

National  banks  are  agencies  of  the  federal  government,  and  are  not 
subject  to  the  taxing  power  of  the  state.  (McHenry  v.  Downer,  116 
Cal.  20,  45  L.  R.  A.  737,  47  Pac.  779.) 

Taxation  of  property  of  a  national  bank,  except  as  permitted  by 
the  United  States  Revised  Statutes,  is  void.  (First  Nat.  Bank  v. 
San  Francisco,  129  Cal.  96,  61  Pac.  778;  Miller  v.  Heilbron,  58  Cal. 
133.) 

The  act  for  the  assessment  of  the  stock  of  national  banks  is  valid, 
(Crocker  v.  Scott,  149  Cal.  575,  87  Pac.  102.) 

State  taxation  of  national  banks.     See  note,  69  Am.  St.  Rep.  38. 

Commerce.-^— A  tax  upon  every  person  selling  consigned  goods  from 
any  state  in  proportion  to  the  amount  sold  is  not  an  interference  with 
the  power  of  Congress  to  regulate  commerce.  (People  v.  Coleman,  4 
Cal.  46,  60  Am.  Dec.  581.) 

An  act  imposing  a  tax  upon  bills  of  lading  for  the  transportation 
of  gold  or  silver  from  any  point  in  this  state  to  any  point  without 
the  state  is  in  conflict  with  the  provision  of  the  United  States  Con- 
stitution forbidding  the  states  to  levy  any  imposts  or  duties  on  im- 
jiorts  or  exports.  (Brumagin  v.  Tillinghast,  18  Cal.  265,  79  Am.  Dec. 
176.) 

An  act  requiring  the  payment  of  a  gauger  for  inspecting  goods 
arriving  at  ports  of  this  state  is  not  in  violation  of  the  United  States 
Constitution  forbidding  the  state  to  impose  duties  on  imports.  (Ad- 
dison V.  Saulnier,  19  Cal.  82.) 

An  act  requiring  a  shipper  to  place  certain  stamps  on  all  tickets 
sold  to  persons  about  to  leave  the  state  is  in  violation  of  the  com- 
merce clause  of  the  United  States  Constitution,  and  is  void.  It  is  a 
tax  and  not  a  police  regulation.     (People  v.  Raymond,  34  Cal.  492.) 

Exemptions. — The  legislature  has  no  power  to  exempt  any  property 
from  taxation.  (Mackay  v.  San  Francisco,  113  Cal.  392,  45  Pac. 
696;  Minturn  v.  Hays,  2  Cal.  o90,  56  Am.  Dec.  366;  People  v.  Mc- 
Creery,  34  Cal.  432;  People  v.  Black  Diamond  etc.  Min.  Co.,  37  Cal. 


Art.  XIII,  §  1         CONSTITUTION  OF  1879.  520 

54;  Crosby  v.  Lyon,  37  Cal.  242;  People  v.  Eddy,  43  Cal.  331,  13  Am. 
Eep.  143;  People  v.  Latham,  52  Cal.  598.) 

An  act  authorizing  the  remission  of  a  tax  is  void.  (Wilson  v.  Su- 
pervisors of  Sutter  Co.,  47  Cal.  91.) 

An  act  taxing  the  property  of  a  district  for  a  local  improvement, 
which  exempts  personal  property  from  its  operation,  is  unconstitu- 
tional, because  not  levied  on  all  the  property  in  the  district.  (People 
V.  Whyler,  41  Cal.  351.) 

Alfalfa  is  not  included  in  the  exemption  of  "growing  crops."  (Mil- 
iar V.  County  of  Kern,  137  Cal.  516,  70  Pac.  549.) 

The  provisions  of  the  Political  Code  in  regard  to  road  taxes  are  not 
in  violation  of  this  section  because  cities  and  towns  are  exempted 
from  their  operation,  since  this  does  not  exempt  cities  and  towns 
from  the  tax,  but  compels  cities  and  towns  to  maintain  their  own 
streets  under  the  street  improvement  act.  (Miller  v.  County  of  Kern, 
137  Cal.  516,  70  Pac.  549.) 

The  crediting  of  taxes  heretofore  paid  upon  property  under  an  in- 
valid levy  does  not  amount  to  an  exemption  from  taxation  of  the 
property  upon  which  such  taxes  were  paid.  (People  v.  Latham,  52 
Cal.  598.) 

The  legislature  cannot  exempt  from  taxation  a  vessel  having  its 
legal  situs  in  this  state.  (Olson  v.  San  Francisco,  148  Cal.  80,  113 
Am.  St.  Eep.  191,  7  Ann.  Cas.  443,  2  L.  E.  A.  (N.  S.)  197,  82  Pac. 
850.) 

Under  this  section  equal  assessment  of  all  property  is  necessary. 
(People  V.  Latimer,  160  Cal.  716,  117  Pac.  1051,  Lorigan's  dissenting 
opinion.) 

Double  taxation. — The  Constitution  forbids  the  double,  taxation  of 
property.  (People  v.  Badlam,  57  Cal.  594;  Germania  Trust  Co.  v. 
San  Francisco,  128  Cal.  589,  61  Pac.  178;  Estate  of  Fair,  128  Cal.  607, 
61   Pac.  184.) 

Double  taxation  does  not  necessarily  consist  in  assessing  the  same 
property  twice  to  the  same  person,  but  may  consist  in  requiring  a 
double  contribution  to  the  same  tax  on  account  of  the  same  property, 
though  the  assessments  are  to  different  persons.  (Germania  Trust 
Co.  V.  San  Francisco,  128  Cal.  589,  61  Pae.  178;  Estate  of  Fair,  128 
Cal.  607,  61  Pac.  184.) 

The  inhibition  of  double  taxation  only  applies  to  such  taxation  by 
the  same  government.     (San  Francisco  v.  Fry,  63  Cal.  470.) 

Because  the  same  subject  matter  has  been  twice  taxed,  it  by  no 
means  follows  that  both  taxes  are  void,  but  to  entitle  a  party  to  re- 
lief in  the  courts,  it  must  appear  that  the  tax  has  been  once  paid  or 
tendered.     (Savings  etc.  Soc.  v.  Austin,  46  Cal.  415.) 

If  land  subject  to  a  mortgage  is  taxed,  and  the  debt  secured  by 
the  mortgage  is  also  taxed,  and  the  tax  on  the  debt  is  paid  by  the 
mortgagee,  the  mortgagor  cannot  complain  of  double  taxation,  (Lick 
v.   Austin,   43   Cal.  590.) 

The  levying  a  tax  upon  money  at  interest,  as  well  as  upon  the  prop- 
erty mortgaged  to  secure  it,  does  not  present  a  case  of  double  taxa- 
tion against  the  mortgagee.     (People  v.  Whartenby,  38  Cal.  461.) 


521  REVENUE  AND  TAXATION.  Art.  XIII,  §  1 

It  would  be  assessing  the  same  property  twice  to  assess  money  on 
deposit  in  a  savings  bank  to  the  bank  and  also  to  the  depositor. 
(People  V.  Badlam,  57  Cal.  594.) 

It  would  be  assessing  the  same  property  twice  to  assess  to  a  cor- 
poration all  of  its  corporate  property,  and  also  to  assess  to  each  of 
the  stockholders  the  shares  held  by  them.  (People  v.  Badlam,  57  Cal. 
oM.) 

A  balance  of  a  money  account  on  general  deposit  in  a  bank  outside 
of  the  state,  held  by  a  corporation  having  its  principal  place  of  busi- 
ness in  this  state,  is  taxable  in  this  state  as  a  solvent  credit.  (Pacific 
Coast  Sav.  Soc.  v.  San  Francisco,  133  Cal.  14,  65  Pac.  16.) 

It  is  not  double  taxation  to  tax  the  roadbed  and  roadway  of  a  rail- 
road, as  they  are  quite  different.  (San  Francisco  etc.  R.  R.  Co.  v. 
State  Board  of  Equalization,  60  Cal.  12.) 

Where  aJl  the  property  of  a  corporation  has  been  assessed  and  it 
owns  none  of  its  capital  stock,  an  assessment  of  "capital"  or  "capital 
stock"  is  void.     (San  Francisco  v.  Spring  Valley  W.  W.,  63  Cal.  524.) 

An  attempt  to  tax  a  seat  in  a  stock  exchange  board,  in  addition  to 
the  taxes  levied  upon  all  the  property  of  the  board,  is  void  as  an  at- 
tempt at  double  taxation.  (San  Francisco  v.  Anderson,  103  Cal.  69, 
42  Am.  St.  Rep.  98,  36  Pac.  1034.) 

Since  a  mortgage  is  assessed  as  an  interest  in  the  land,  to  also 
assess  the  bonds  which  the  mortgage  secures  is  double  taxation. 
(Germania  Trust  Co.  v.  San  Francisco,  128  Cal,  589,  61  Pac.  178;  Es- 
tate of  Fair,  128  Cal.  607,  61  Pac.  184.) 

The  lender  of  money  is  not  subjected  to  double  taxation  by  reason 
of  the  payment  of  taxes  on  money  loaned  by  him,  and  on  solvent 
debts  due  him  over  his  own  indebtedness.  (People  v.  McCreery,  34 
Cal.  432.) 

The  legislature  may  impose  a  penalty  on  those  who  neglect  to  have 
their  property  assessed  at  the  proper  time;  and  a  law  providing  for 
the  double  taxation  of  property  which  has  escaped  assessment  in  the 
previous  year  is  valid.     (Biddle  v.  Oaks,  59  Cal.  94.) 

Double  taxation  of  franchises.     See   note,  131  Am.  St.  Rep.  874. 

Taxation  of  shares  of  stock  and  capital  stock  or  property  of  cor- 
poration as  constituting  double  taxation.  See  notes,  7  Ann. 
Cas.  1195;  13  Ann.  Cas.  636. 

Assessment. — Assessment  of  property  is  a  function  of  the  executive 
department  of  the  government;  and  the  judiciary  has  no  power  to 
inquire  as  to  the  actual  value  of  property  for  the  purpose  of  taxation, 
in  order  to  determine  whether  there  has  been  misrepresentations  as 
to  its  value.     (Clunie  v.  Biebe,  112  Cal.  593,  44  Pac.  1064.) 

The  provisions  of  this  section  are  self-executing,  and  require  the 
assessor  to  ascertain  the  value  of  the  property  in  the  manner  now 
provided  by  law.     (Hyatt  v.  Allen,  54  Cal.  353.) 

The  provision  of  the  former  Constitution  as  to  the  election  of 
assessor  and  tax  collector  was  held  mandatory,  and  restrained  the 
legislature  to  a  particular  mode  of  providing  for  such  officers.  (People 
V.  Kelsey,  34  Cal.  470.) 


Art.  XIII,  §  1  CONSTITUTION  OP  1879.  522 

Under  the  former  Constitution  an  assessment  not  made  by  an  as- 
sessor elected  by  the  electors  of  the  district  was  void.  (Williams  v. 
Corcoran,  46   Cal.   553.) 

This  section  does  not  require  the  value  of  the  property  to  be  found 

after  the  rate  of  taxation  is  fixed.     (People  v.  Latham,  52  Cal.  598.) 

A  tax  for  school  purposes  must  be  based  upon  an  assessment  made 

by  an  assessor  elected  by  the  qualified  electors  of  the  school  district. 

(People  V.  Stoclfton  etc.  Co.,  49  Cal.  414.) 

The  legislature  cannot  confer  on  a  state  board  of  equalization  of 
taxes  the  power  to  add  to  or  deduct  from  the  assessed  value  of  the 
property,  as  fixed  by  the  assessor.  (Houghton  v.  Austin,  47  Cal.  646.) 
The  payment  of  a  tax  cannot  be  resisted  on  the  ground  that  the 
property  on  which  it  was  levied  was  not  assessed  at  its  true  value. 
One  whose  property  is  not  assessed  according  to  its  true  value  must 
apply  to  the  board  of  equalization  for  relief.  (People  v.  Whyler,  41 
Cal.  351.) 

The  only  mode  in  which  defective  assessments  may  be  cured  by  the 
legislature  is  to  empower  the  assessor  to  correct  the  same.  (People 
V.  Hastings,  34  Cal.  571.) 

The  failure  of  the  assessor  to  assess  certain  property,  whether  by 
reason  of  a  void  statute  or  by  mistake,  does  not  invalidate  the  assess- 
ment.    (People  V.  McCreery,  34  Cal.  432.) 

The  value  of  a  franchise  of  a  corporation  is  properly  fixed  by  tak- 
ing the  value  of  all  tangible  property  of  the  corporation  from  the 
market  value  of  the  capital  stock.  (Spring  Valley  W.  W.  v.  Schot- 
tler,  62  Cal.  69.) 

A  law  providing  that  taxes  upon  personal  property  unsecured  by 
real  estate  shall  be  collected  at  the  time  of  the  assessment  is  valid, 
although  other  taxes  are  not  payable  until  several  months  later. 
(Rode  V.  Siebe,  119  Cal.  518,  39  L.  R.  A.  342,  51  Pac.  869,  Van  Fleet, 
J.,  and  Harrison,  J.,  dissenting;  Pacific  Postal  Tel.  etc.  Co.  v.  Daltoii, 
119  Cal.  604,  51  Pac.  1072.) 

Purposes. — The  extent  to  which  the  power  of  taxation  may  be  exer- 
cised is  left  unlimited,  except  by  legislative  discretion.  (Stockton 
etc.  R.  R.  Co.  v.  Common  Council  of  Stockton,  41  Cal.  147;  Blanding 
V.  Burr,  13  Cal.  343.) 

The  taxing  power,  whether  it  be  asserted  in  the  form  of  general 
taxation  or  of  local  assessment,  cannot  be  upheld  when  the  purpose 
in  view  can  be  judicially  seen  to  be  other  than  public.  (In  re  Market 
Street,  49  Cal.  546.) 

The  legislature  may  recognize  a  moral  obligation  as  the  sole  basis 
for  the  imposition  of  taxes.  (Beals  v.  Board  of  Suprs.  of  Amador 
County,  35  Cal.  624.) 

Taxation  cannot  be  justified  for  an  object  or  for  the  benefit  of  a 
class  in  which  the  taxpayer  is  directly  excluded  from  participating. 
(Hughes  V.  Ewing,  93  Cal.  414,  28  Pac.  1067.) 

Licenses. — A  license  fee  or  charge  for  the  transaction  of  any  busi- 
ness is  not  a  tax  within  the  meaning  of  this  section.  (Santa  Barbara 
V.  Stearns,  51  Cal.  499.) 

A  license  tax  upon  the  right  to  carry  on  a  particular  trade  or  busi- 
ness, imposing  the  same  rate  or  amount  on  all  engaged  in  the  same 


I 


523  REVENUE  AND  TAXATION.  Art.  XIII,  §  1 

business  regardless  of  the  amount  of  capital  employed  or  profits 
earned,  is  a  valid  exercise  of  the  taxing  power,  and  is  not  a  tax  upon 
property  within  the  meaning  of  this  section.  (Los  Angeles  v.  Los  An- 
geles etc.  Gas  Co.,  1.52  Cal.  765,  93  Pac.  1006.) 

The  Constitution  does  not  prohibit  the  legislature  from  authorizing 
municipal  corporations  to  tax  occupations  for  purpose  of  revenue. 
An  ordinance  requiring  the  annual  license  of  twenty  dollars  for  each 
street-car  operated  upheld,  although  the  cars  also  ran  in  an  adjoin- 
ing town.  (San  Jose  v.  San  Jose  etc.  R.  R.  Co.,  53  Cal.  475;  People 
V.  Coleman,  4  Cal.  46,  60  Am.  Dec.  581;  Sacramento  v.  Crocker,  16 
Cal.  119;   Ex  parte  Hurl,  49  Cal.  557,  approved.) 

A  municipality  has  no  inherent  power,  by  virtue  of  its  existence  as 
a  municipality,  to  impose  a  license  upon  a  business,  but  its  power  in 
this  respect  comes  from  the  legislature,  and  must  be  found  in  the 
organic  act,  or  necessarily  inferred  from  the  powers  therein  expressly 
granted.     (Ex  parte  Newton,  53  Cal.  571.) 

An  act  prohibiting  foreigners  from  working  the  gold  mines,  except 
on  condition  of  paying  a  certain  sum  each  month  for  the  privilege, 
imposes  a  license  and  not  a  tax  and  is  valid.  (People  v.  Naglee,  1 
Cal.  232,  52  Am.  Dec.  312.) 

This  provision  applies  only  to  direct  taxation  upon  property,  and 
does  not  prohibit  the  legislature  from  enacting  license  laws.  (People 
V.  Naglee,  1  Cal.  232,  52  Am.  Dec.  312.) 

Purposes  for  which  taxes  may  be  imposed.     See  note,  16  Am.  St. 
Eep.  365. 

Assessments. — The  word  "assessment"  represents  those  local  burdens 
imposed  by  municipal  corporations  upon  property  bordering  upon  an 
improved  street,  for  the  purpose  of  paying  the  cost  of  the  improve- 
ment, and  laid  with  reference  to  the  benefit  the  property  is  supposed 
to  receive  from  the  expenditure  of  the  money.  (Taylor  v.  Palmer,  31 
Cal.  240.) 

An  assessment  is  a  special  and  local  charge  upon  property  in  the 
immediate  vicinity  of  municipal  improvements,  predicated  upon  the 
theory  of  benefits,  and  levied  upon  land  or  property  specially  bene- 
fited "by  such  improvements,  while  a  charge  imposed  by  law  upon  the 
assessed  value  of  all  property  in  a  district  is  a  tax,  although  for  a 
local  improvement.  (Holley  v.  Orange  County,  106  Cal.  420,  39  Pac. 
790.) 

An  assessment  upon  lots  adjacent  to  a  street  to  pay  for  improve- 
ments made  on  the  street,  if  held  to  be  a  tax,  cannot  be  upheld,  be- 
cause it  lacks  the  constitutional  requirement  of  equality  and  uniform- 
ity. (Creighton  v.  Monson,  27  Cal.  613.  But  see  Walsh  v.  Mathews, 
29  Cal.  123.) 

An  assessment  by  an  irrigation  district  upon  the  public  lands  of  a 
city,  which  are  unoccupied  and  uncultivated  lands,  susceptible  of  cul- 
tivation by  irrigation,  and  which  would  be  benefited  thereby,  is  not  a 
tax  within  the  meaning  of  this  section.  (San  Diego  v.  Linda  Vista 
Irr.  Dist.,  108  Cal.  189,  35  L.  R.  A.  33,  41  Pac.  291.) 

An  assessment  levied  by  an  irrigation  district,  although  referable 
to  the  power  of  taxation,  is  distinct  from  a  tax,  and  is  not  subject 
to    the    constitutional    provisions    respecting    taxation,    and    may    be 


Art.  XIII,  §  1  CONSTITUTION  OF  1879.  524 

levied  upon  all  real  property,  without  deducting  therefrom  any  mort- 
gages thereon.     (Tregea  v.  Owens,  94  Cal.  317,  29  Pac.  643.) 

An  assessment  for  a  street  improvement  upon  the  front-foot  system 
is  an  exercise  of  the  power  of  taxation.  (Emery  v.  San  Francisco 
etc.  Co.,  28  Cal.  345.) 

This  section  does  not  apply  to  an  assessment  for  a  street  improve- 
ment. (Burnett  v.  Mayor  etc.  Sacramento,  12  Cal.  76,  73  Am.  Dec. 
518;  People  v.  Austin,  47  Cal.  353;  Hagar  v.  Board  of  Supervisors,  47 
Cal.  222;  Chambers  v.  Satterlee,  40  Cal.  497.) 

A  charge  imposed  on  all  property  of  a  district,  to  be  used  in  con- 
structing levees  to  protect  the  district  from  overflow,  is  a  tax  and  not 
an  assessment.  (People  v.  Whyler,  41  Cal.  351;  "Williams  v.  Corco- 
ran, 46  Cal.  553;  Smith  v.  Farrelly,  52  Cal.  77.) 

An  "assessment"  for  a  local  improvement  is  a  "tax,"  and,  while  it 
need  not  be  assessed  on  the  ad  valorem  principle,  it  must  be  equal 
and  uniform.     (People  v.  Lynch,  51  Cal.  15,  21  Am.  Eep.  677.) 

The  fact  that  a  statute  designates  as  a  "tax"  that  which  in  its  ele- 
ments is  an  "assessment"  does  not  make  it  a  "tax."  (People  v.  Aus- 
tin, 47  Cal.  353.) 

The  legislature  cannot  levy  an  assessment  not  uniform  and  equal, 
nor  can  it  validate  an  assessment  void  for  want  of  uniformity  and 
equality.     (People  v.  Lynch,  51  Cal.  15,  21  Am.  Eep.  677.) 

An  assessment  cannot  be  laid  upon  lots  for  street  work  done  under 
an  abortive  contract  with  the  municipality.  (In  re  Market  Street, 
49  Cal.  546.) 

The  "front-foot"  method  of  assessment  is  valid.  (Oakland  etc.  Co. 
V.  Rier,  52  Cal.  270;  People  v.  Lynch,  51  Cal.  15,  21  Am.  Rep.  677; 
Walsh  V.  Mathews,  29  Cal.  123;  Hadley  v.  Dague,  130  Cal.  207,  62 
Pac.  500;  Cohen  v.  Alameda,  124  Cal.  504,  57  Pac.  377;  Chambers  v. 
Satterlee,  40  Cal.  497;  Emery  v.  San  Francisco  etc.  Co.,  28  Cal.  345; 
Emery  v.  Bradford,  29  Cal.  75;  Taylor  v.  Palmer,  31  Cal.  240;  Whit- 
ing V.  Quackenbush,  54  Cal.  306;  Whiting  v.  Townsend,  57  Cal.  515; 
Lent  V.  Tillson,  72  Cal.  404,  14  Pac.  71;  Jennings  v.  Le  Breton,  80 
Cal.  8,  21  Pac.  1127;  San  Francisco  Pav.  Co.  v.  Bates,  134  Cal.  39, 
66  Pac.  2;  Banaz  v.  Smith,  133  Cal.  102,  65  Pac.  309.) 

An  act  levying  the  cost  of  a  street  improvement  upon  the  adjacent 
property,  in  accordance  with  the  assessed  value  of  the  land,  is  valid. 
(Burnett  v.  Mayor  etc.  Sacramento,  12  Cal.  76,  73  Am.  Dec.  518.) 

The  legislature  may  provide  for  a  local  public  improvement  for  the 
benefit  of  a  portion  of  the  state,  and  may  tax  all  land  within  a  lim- 
ited district,  notwithstanding  some  of  the  property  of  the  district  will 
not  receive  any  benefit,  and  some  property  outside  of  the  district  may 
be  incidentally  benefited.  (In  re  Madera  Irr,  Dist.,  92  Cal.  296,  27 
Am.  St.  Rep.  106,  14  L.  R.  A.  755,  28  Pac.  272,  675.) 

An  assessment  upon  specified  property  can  be  supported  only  upon 
the  ground  that  the  property  taxed  is  benefited  by  the  improvement. 
(In  re  Market  Street,  49  Cal.  546.) 

The  fact  that  levees  built  to  protect  the  land  of  a  district  from 
overflow  injure  some  of  the  land  instead  of  benefiting  it  does  not 
render  the  tax  unequal  or  void  for  want  of  uniformity.  (People  v. 
Whyler,  41  Cal.  351.) 


I 


525  REVENUE   AND    TAXATION.      Art.  XIII,  §§  la,  V/^ 

A  tax  levied  on  the  property  of  a  given  district,  to  pay  for  a  local 
improvement,  which  is  assessed  upon  the  parcels  of  property  in  the 
district  in  proportion  to  the  benefit  each  parcel  derives  from  the  work, 
is  unconstitutional.  Such  tax  must  be  levied  on  all  property  accord- 
ing to  its  value.     (People  v.  Whyler,  41  Cal.  351.) 

An  owner  may  be  made  personally  liable  for  the  expense  of  a  street 
improvement.  (Walsh  v.  Mathews,  29  Cal.  123.  Creighton  v.  Man- 
son,  27  Cal.  613,  overruled.) 

An  act  requiring  the  owner  of  a  lot  to  keep  the  street  in  front  of 
it  in  repair  after  it  has  been  planked  and  graded  is  valid.  (Hart  v. 
Gaven,  12  Cal.  476.) 

The  fact  that  a  town  is  included  within  an  irrigation  district  does 
not  invalidate  the  district,  since  even  though  the  land  is  not  sus- 
ceptible of  irrigation,  it  may  be  benefited  by  the  improvement.  (In 
re  Madera  Irr.  Dist.,  92  Cal.  296,  27  Am.  St.  Eep.  106,  14  L,  E.  A.  755, 
28  Pac.  272,  675.) 

Recovery  of  taxes. — An  action  to  recover  municipal  taxes  is  an  ac- 
tion upon  a  liability  created  by  statute,  and  is  barred  in  three  years; 
and  where  it  has  the  force  of  a  judgment,  it  is  barred  in  five  years. 
(San  Diego  v.  Higgins,  115  Cal.  iVo,  46  Pac.  923.) 

Recovery  of  taxes  paid.     See  note,  94  Am,  St.  Rep.  425. 

Colleges  exempt  from  taxation. 

Sec.  la.  Any  educational  institution  of  collegiate  grade, 
within  the  state  of  California,  not  conducted  for  profit, 
shall  hold  exempt  from  taxation  its  buildings  and  equip- 
ment, its  grounds  within  which  its  buildings  are  located, 
not  exceeding  one  hundred  acres  in  area,  its  securities  and 
income  used  exclusively  for  the  purposes  of  education. 
(New  section  added  by  amendment  adopted  November  3, 
1914.) 

United  States  army,  navy,  marine  and  revenue  service. 

Sec.  II/4.  The  property  to  the  amount  of  one  thousand 
dollars  of  every  resident  in  this  state  who  has  served  in  the 
army,  navy,  marine  corps,  or  revenue  marine  service  of  the 
United  States  in  time  of  war,  and  received  an  honorable 
discharge  therefrom;  or  lacking  such  amount  of  property 
in  his  own  name,  so  much  of  the  property  of  the  wife  of 
any  such  person  as  shall  be  necessary  to  equal  said  amount; 
and  property  to  the  amount  of  one  thousand  dollars  of  the 
widow  resident  in  this  state,  or  if  there  be  no  such  widow, 
of  the  widowed  mother  resident  in  this  state,  of  every  per- 
son who  has  so  served  and  has  died  either  during  his  term 


Art.  XIII,  §§  iy2-2     CONSTITUTION  OF  1879.  526 

of  service  or  after  receiving  honorable  discharge  from  said 
service ;  and  the  property  to  the  amount  of  one  thousand 
dollars  of  pensioned  widows,  fathers,  and  mothers,  resident 
in  this  state,  of  soldiers,  sailors,  and  marines  who  served  in 
the  army,  navy,  or  marine  corps,  or  revenue  marine  service 
of  the  United  States,  shall  be  exempt  from  taxation ;  pro- 
vided, that  this  exemption  shall  not  apply  to  any  person 
named  herein  owning  property  of  the  value  of  five  thou- 
sand dollars  or  more,  or  where  the  wife  of  such  soldier  or 
sailor  owns  property  of  the  value  of  five  thousand  dollars 
or  more.  No  exemption  shall  be  made  under  the  provisions 
of  this  act  of  the  property  of  a  person  who  is  not  a  legal 
resident  of  the  state.  (Amendment  approved  October  10, 
19.11.) 

Churches  exempt  from  taxation. 

Sec.  11/^.  All  buildings,  and  so  much  of  the  real  prop- 
erty on  which  they  are  situated  as  may  be  required  for  the 
convenient  use  and  occupation  of  said  buildings,  when  the 
same  are  used  solely  and  exclusively  for  religious  worship, 
shall  be  free  from  taxation ;  provided,  that  no  building  so 
used  which  may  be  rented  for  religious  purposes  and  rent 
received  by  the  owner  therefor,  shall  be  exempt  from  taxa- 
tion.    (Amendment  adopted  November  6,  1900.) 

What  is  included  in  exemption  of  religious  institution  from  taxa- 
tion.    See  note,  Ann.  Cas.  1912A,  354. 

Exemption  from  taxation  of  parsonage  or  residence  of  minister, 
priest,  etc.     See  note,  11  Ann.  Cas.  1102. 

Bonds  of  state  and  municipalities  exempt  from  taxation. 

Sec.  1%.  All  bonds  hereafter  issued  by  the  state  of  Cali- 
fornia, or  by  any  county,  city  and  county,  municipal  corpo- 
ration, or  district  (including  school,  reclamation,  and  irri- 
gation districts)  within  said  state,  shall  be  free  and  exempt 
from  taxation.     (Amendment  adopted  November  4,  1902.) 

Land  and  improvements  to  be  separately  assessed. 

Sec.  2.  Land,  and  the  improvements  thereon,  shall  be 
separately  assessed.     Cultivated  and  uncultivated  land,  of 


527  REVENUE    AND    TAXATION.      Art.  XIII,  §§  3,  4 

the  same  quality,  and  similarly  situated,  shall  be  assessed 
at  the  same  value. 

ASSESSMENT  OF  LAND. — An  assessment  of  land  claimed  and  oc- 
cupied by  a  railroad  company  as  a  right  of  way,  together  with  the 
track  and  all  superstructures  and  substructures,  without  any  separate 
assessment  of  land  and  improvement,  is  void.  (California  etc.  R.  R. 
Co.  V.  Mecartney,  104  Cal.  616,  38  Pac.  448.) 

The  Constitution  leaves  it  to  the  legislature  to  define  "improve- 
ments," and  alfalfa,  not  being  included  in  the  legislative  definition, 
must  he  taxed  as  realty  and  not  as  improvements.  (Miller  v.  County 
of  Kern,  137  Cal.  516,  70  Pac.  549.) 

This  section  requires  that  fences  erected  upon  the  roadway  or  road- 
bed of  a  railroad,  even  if  owned  by  the  railroad  company,  be  sep- 
arately assessed  as  improvements.  (Santa  Clara  County  v.  South- 
ern Pacific  R.  R.  Co.,  118  U.  S.  394,  30  L.  Ed.  118,  6  Sup.  Ct.  Rep. 
1132.) 

Sectionized  and  unsectionized  land,  how  assessed. 

Sec.  3.  Every  tract  of  land  containing  more  than  six 
hundred  and  forty  acres,  and  which  has  been  sectionized 
by  the  United  States  government,  shall  be  assessed,  for  the 
purposes  of  taxation,  by  sections  or  fractions  of  sections. 
The  legislature  shall  provide  by  law  for  the  assessment,  in 
small  tracts,  of  all  lands  not  sectionized  by  the  United 
States  government. 

Securities,  taxable,     (Repealed.) 

Sec.  4.     This     section     was     repealed     by     amendment 

adopted  November  8,  1910.     The  section  so  repealed  was  as 

follows : 

Sec.  4.  A  mortgage,  deed  of  trust,  contract,  or  other  obligation 
by  which  a  debt  is  secured,  shall,  for  the  purposes  of  assessment 
and  taxation,  be  deemed  and  treated  as  an  interest  in  the  property 
affected  thereby.  Except  as  to  railroad  and  other  quasi  public 
corporations,  in  case  of  debts  so  secured,  the  value  of  the  property 
affected  by  such  mortgage,  deed  of  trust,  contract,  or  obligation, 
less  the  value  of  such  security,  shall  be  assessed  and  taxed  to  the 
owner  of  the  property,  and  the  value  of  such  security  shall  be 
assessed  and  taxed  to  the  owner  thereof,  in  the  county,  city,  or 
district  in  which  the  property  affected  thereby  is  situate.  The 
taxes  so  levied  shall  be  a  lien  upon  the  property  and  security,  and 
may  be  paid  by  either  party  to  such  security;  if  paid  by  the  owner 
of  the  security,  the  tax  so  levied  upon  the  property  affected  there- 
by shall  become  a  part  of  the  debt  so  secured;  if  the  owner  of  the 
property  shall  pay  the  tax  so  levied  on  such  security,  it  shall  con- 
stitute a  payment  thereon,  and  to  the   extent  of  such  payment  a 


Art  XIII,  §  4  CONSTITUTION  OF  1879.  528 

full  discharge  thereof;  provided,  that  if  any  such  security  or  in- 
debtedness shall  be  paid  by  any  such  debtor  or  debtors,  after 
assessment  and  before  the  tax  levy,  the  amount  of  such  levy  may 
likewise  be  retained  by  such  debtor  or  debtors,  and  shall  be  com- 
puted according  to  the  tax  levy  for  the  preceding  year, 

ASSESSMENT  OF  MORTGAGES.— A  mortgage  as  such  is  not 
liable  to  be  assessed,  but  the  assessment  should  be- made  of  the  debt 
which  the  mortgage  was  given  to  secure.  (People  v.  Eastman,  25 
Cal.  601.) 

The  provisions  of  this  section  apply  to  mortgages  executed  prior 
to  the  adoption  of  the  Constitution.  (McCoppin  v.  McCartney,  60 
Cal.  367.) 

This  section  has  exclusive  reference  to  mortgages,  deeds  of  trust, 
contracts,  or  other  obligations  affecting  realty.  (Bank  of  Willows  v. 
County  of  Glenn,  155  Cal.  352,  101  Pac.  13.) 

When  no  tax  is  assessed  against  the  interest  of  the  mortgagee,  but 
the  whole  tax  is  assessed  against  the  property  and  paid  by  the  owner, 
it  cannot  be  deducted  from  the  mortgage  debt.  (John  Briekell  Co.  v. 
Sutro,  11  Cal.  App.  460,  105  Pac.  948,  949.) 

Where  a  mortgage  executed  prior  to  the  new  Constitution  made  no 
provision  as  to  who  should  pay  the  taxes,  the  mortgagee  is  made  pri- 
marily liable  for  them  by  this  section.  (Hay  v.  Hill,  65  Cal.  383,  4 
Pac.  378.) 

An  assessment  levied  by  an  irrigation  district  may  be  levied  upon 
all  lands,  without  deducting  therefrom  any  mortgages  thereon.  (Tregea 
V.  Owens,  94  Cal.  317,  29  Pac.  643.) 

This  section  is  to  be  construed  as  having  reference  only  to  taxa- 
tion in  case  of  liens  upon  land,  and  does  not  apply  to  personal  prop- 
erty.    (Bank  of  Woodland  v.  Pierce,  144  Cal.  434,  77  Pac.  1012.) 

Solvent  credits  may  be  taxed  by  a  city  to  the  owner  domiciled 
therein,  though  secured  by  a  lien  upon  wheat  situated  and  taxed  else- 
where.    (Bank  of  Woodland  v.  Pierce,  144  Cal.  434,  77  Pac.  1012.) 

Whether  the  loan  secured  by  the  stocks  and  bonds  is  or  is  not  an 
interest  in  the  "property  affected  thereby"  for  the  purpose  of  taxa- 
tion within  the  meaning  of  this  section,  and  conceding  that  the  stocks 
and  bonds  may  be  exempt  from  taxation,  the  debt  secured  thereby, 
for  money  loaned  is  not  exempt,  but  may  be  taxed  to  the  lender. 
(Savings  etc.  Soc.  v.  San  Francisco,  131  Cal.  356,  63  Pac.  665.) 

A  mortgage  is  not  "real  estate,"  except  for  the  purpose  of  taxation. 
The  mortgagor  is  still  the  owner  of  the  land,  and  it  is  subject  to  liens 
for  taxes  on  personal  property  owned  by  the  mortgagor,  (California 
Loan  etc.  Co.  v.  Weis,  118  Cal.  489,  50  Pac.  697.) 

An  assessment  of  a  "mortgage  upon  the  following  described  prop- 
erty, to  wit"  (describing  the  mortgaged  premises),  is  an  assessment 
of  the  land  and  not  merely  the  mortgage.  (Doland  v.  Mooney,  72 
Cal.  34,  13  Pac.  71.) 

Bonds  of  a  railroad  company  secured  by  mortgages  of  its  property 
within  the  state  are  not  assessable  to  the  holder  of  the  bonds.  (Ger- 
mania  Trust  Co.  v.  San  Francisco,  128  Cal.  589,  61  Pac.  178;  Estate 
of  Fair,  128  Cal.  607,  61  Pac.  184.) 


I 


529  REVENUE  AND   TAXATION.     Art.  XIII,  §§  4a,  5 

Receipts  for  taxes  on  mortgaged  lands  found  in  the  possession  of 
the  deceased  mortgagee  raise  a  presumption  that  the  taxes  were  paid 
by  him,  though  they  are  in  the  name  of  the  mortgagor.  (Lloyd  v. 
Davis,  123  Cal.  .348,  5.5  Pac.  1003.) 

The  last  clause  of  this  section  does  not  give  the  mortgagor  an  ex- 
clusive remedy,  but,  if  he  fails  to  retain  the  money,  he  may  recover 
it  from  the  mortgagee.  (San  Gabriel  Valley  etc.  Co.  v.  Witmer  Bros. 
Co.,  96  Cal.  623,  18  L.  R.  A.  465,  29  Pac.  500,  31  Pac.  588.) 

Where  the  mortgagor  pays  the  interest  on  the  mortgage  he  cannot 
recover  it  back  on  the  ground  that  the  mortgage  provides  that  the 
mortgagor  shall  pay  the  interest  on  the  mortgage.  (Matthews  v.  Or- 
merd,  140  Cal.  578,  74  Pac.  136.) 

A  first  mortgagee,  having  foreclosed  his  mortgage  against  a  second 
mortgagee,  cannot  maintain  an  action  against  the  latter  to  recover 
money  paid  by  him  to  redeem  the  property  from  taxes  assessed  upon 
the  second  mortgage.  (Canadian  etc.  Trust  Co.  v.  Boas,  136  Cal.  419, 
69  Pac.  18.) 

The  purchaser  under  a  first  mortgage  is  not  a  party  to  the  security 
of  the  second  mortgage  within  the  meaning  of  this  section,  and  can- 
not recover  a  tax  paid  by  him  on  the  second  mortgage.  (Henry  v. 
Garden  City  Bank  etc.  Co.,  145  Cal.  54,  78  Pac.  228.) 

The  property  of  railroad  and  other  quasi-public  corporations  is  sub- 
ject to  taxation,  without  deduction  of  any  mortgage  or  other  like  lien 
thereon.  (Central  Pac.  E.  R.  Co.  v.  State  Board  of  Equalization,  60 
Cal.  35.) 

The  provision  of  this  section  taxing  property  of  quasi-public  cor- 
porations, without  deduction  of  liens  thereon,  is  not  in  conflict  with 
the  provision  of  the  United  States  Constitution  that  no  state  shall 
"deny  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws,"  since  that  provision  does  not  apply  to  artificial  persons.  (Cen- 
tral Pac.  R.  R.  Co.  V.  State  Board  of  Equalization,  60  Cal.  35.) 

This  provision  must  be  understood  as  referring  wholly  to  the  taxa- 
tion of  private  property  and  to  mortgages  made  to  private  persons 
and  not  to  those  belonging  to  the  state.  (Webster  v.  Board  of  Re- 
gents, 163  Cal.  705,  126  Pac.  974.) 

Vessels  exempt  from  taxation. 

Sec.  4a.  All  vessels  of  more  than  fifty  tons  burden  regis- 
tered at  any  port  in  this  state  and  engaged  in  the  transpor- 
tation of  freight  or  passengers,  shall  be  exempt  from  taxa- 
tion except  for  state  purposes,  until  and  including  the  first 
day  of  January,  nineteen  hundred  thirty-five.  (New  sec- 
tion added  by  amendment  adopted  November  3,  1914.) 

Contract  of  borrower  to  pay  tax  on  loan  void. 

Sec.  5.  This  section  was  repealed  by  amendment 
adopted  November  6,  1906.  The  section  repealed  read  as 
follows : 

Constitution — 34 


Art.  XIII,  §  5  CONSTITUTION  OF  1879.  530 

Sec.  5.  Every  contract  hereafter  made,  by  which  a  debtor  is 
obligated  to  pay  any  tax  or  assessment  on  money  loaned,  or  on 
any  mortgage,  deed  of  trust,  or  other  lien,  shall,  as  to  any  interest 
specified  therein,  and  as  to  such  tax  or  assessment,  be  null  and 
void. 

PAYMENT  OF  TAXES  ON  MORTGAGES.— This  section,  only  ap- 
plies to  contracts  made  after  its  adoption.  (Beckman  v.  Skaggs,  59 
Cal.  541.) 

A  provision  in  a  mortgage  that  the  mortgagee  "may  pay  all  taxes, 
etc.,  upon  the  property,  and  the  same  shall  be  repaid  with  interest 
thereon  at  the  rate  of  one  per  cent  per  month,"  does  not  violate  this 
section.     (Bank  of  Ukiah  v.  Reed,  131  Cal.  597,  63  Pac.  921.) 

A  contemporaneous  agreement  between  the  mortgagor  and  mortga- 
gee that  if  the  mortgagor  should  present  proper  official  receipts  show- 
ing the  payment  of  the  mortgage  tax,  he  should  receive  credit  of  two 
and  one-half  per  cent  upon  the  mortgage  note,  is  not  in  violation  of 
this  section,  as  it  is  not  enforceable  against  the  mortgagor,  but  simply 
permissive.      (Hewitt  v.  Dean,  91  Cal.  5,  27  Pac.  423.) 

But  where  a  mortgage  provides  for  interest  of  one  per  cent  per 
month,  but  the  mortgagee,  by  a  separate  instrument  agrees  that  he 
will  only  exact  interest  amounting  to  eight  per  cent  per  annum  and 
agrees  to  refund  all  interest  paid  over  and  above  this  amount  after 
he  has  paid  out  of  said  one  per  cent  per  month  the  mortgage  tax,  the 
two  instruments  must  be  construed  together,  and,  so  construed,  they 
constitute  an  agreement  for  eight  per  cent  per  annum  interest,  with 
the  mortgagors  paying  the  tax,  and  under  this  section  such  a  contract 
is  void.     (Matthews  v,  Ormerd,  134  Cal.  84,  66  Pac.  67,  210.) 

A  provision  in  a  mortgage  that,  in  case  of  foreclosure,  the  mortga- 
gee may  include  all  payments  made  by  him  for  the  taxes  on  the  mort- 
gage, is  void,  and  renders  void  the  mortgage  as  to  the  payment  of 
interest;  but  if  the  mortgagor  pays  the  interest  he  cannot  recover  it 
back.  (Harralson  v.  Barrett,  99  Cal.  607,  34  Pac.  342;  Garms  v.  Jen- 
sen, 103  Cal.  374,  37  Pac.  337.) 

Evidence  of  a  parol  agreement  between  the  parties  to  the  mortgage, 
whereby  the  mortgagor  undertook  to  pay  the  taxes  which  might  be 
assessed  and  levied  upon  the  mortgage,  is  inadmissible.  (Daw  v. 
Niles,  104  Cal.  106,  37  Pac.  876;  Harrelson  v.  Tomich,  107  Cal.  627, 
40  Pac.  1032;  California  State  Bank  v.  Webber,  110  Cal.  538,  42  Pac, 
1066.) 

Where  a  conventional  rate  of  interest  is  agreed  upon,  a  verbal 
agreement  that  if  the  mortgagor  should  pay  the  taxes  on  the  mort- 
gage, a  reduction  should  be  allowed  upon  the  agreed  interest,  is  not 
in  violation  of  this  provision.  (California  State  Bank  v.  Webber, 
110  Cal.  538,  42  Pac.  1066.) 

A  contemporaneous  agreement  by  the  mortgagor  to  pay  the  tax 
on  the  mortgage  is  void.  (Burbridge  v.  Lemmert,  99  Cal.  493,  32  Pac. 
310.) 

The  provision  of  this  section  for  a  forfeiture  of  interest  has  no  ap- 
plication to  a  contract  by  a  purchaser  to  pay  taxes  on  the  land;  nor 
does  it  refer  to  a  possible  equitable  lien  of  the  purchaser  for  purchase 


531  REVENUE    AND    TAXATION.      Art.  XIII,  §§  6-8 

money  paid,  which  could  arise,  if  at  all,  only  when  the  vendor  is  in 
default.  (Vance  Redwood  Lumber  Co.  v.  Durphy,  8  Cal.  App.  664,  97 
Pac.  702.) 

Power  of  taxation  cannot  be  surrendered. 

Sec.  6.  The  power  of  taxation  shall  never  be  surren- 
dered or  suspended  by  any  grant  or  contract  to  which  the 
state  shall  be  a  party. 

Payment  of  taxes  by  installments. 

Sec.  7.  The  legislature  shall  have  the  power  to  provide 
by  law  for  the  payment  of  all  taxes  on  real  property  by 
installments. 

Annual  statement  of  property  to  be  given. 

Sec.  8.  The  legislature  shall  by  law  require  each  tax- 
payer in  this  state  to  make  and  deliver  to  the  county  as- 
sessor, annually,  a  statement,  under  oath,  setting  forth  spe- 
cifically all  the  real  and  personal  property  owned  by  such 
taxpayer,  or  in  his  possession,  or  under  his  control,  at 
twelve  o'clock  meridian,  on  the  first  Monday  of  March. 

ASSESSMENT. — A  tax  must  rest  upon  an  assessment  made  in  the 
mode  prescribed  by  law,  by  an  assessor  elected  by  the  qualified  elec- 
tors of  the  district,  couhty,  or  town  in  which  the  property  is  taxed. 
(People  V.  Hastings,  29  Cal.  449.) 

An  assessment  made  by  an  assessor  of  the  city  and  county  of  Sac- 
ramento is  not  sufficient  basis  for  the  levy  of  a  tax  in  the  city  of 
Sacramento  for  city  purposes.     (People  v.  Hastings,  29   Cal.  449.) 

The  sheriff,  as  such,  cannot  perform  the  duties  of  tax  collector. 
(Lathrop  v.  Brittain,  30  Cal.  680.) 

The  assessment  must  be  made  by  the  assessor,  and,  if  not  so  made, 
the  legislature  cannot  supply  the  defect  by  a  curative  act;  but,  if  the 
assessment  is  good  in  substance,  any  error  in  mode,  form,  etc.,  may 
be  remedied  by  the  legislature.     (People  v.  McCreery,  34  Cal.  432.) 

Although  the  legislature  cannot  by  law  transfer  the  duties  of  tax 
collector  from  a  person  elected  as  such  to  one  not  so  elected,  it  may 
provide  for  the  election  of  a  person  as  tax  collector  who  may  enter 
upon  the  discharge  of  his  duties  before  the  expiration  of  the  term 
of  a  tax  collector  elected  under  the  law  as  it  previously  stood.  (Mills 
V.  Sargent,  36  Cal.  379.) 

The  provision  of  section  3G33  of  the  Political  Code,  providing  for 
an  arbitrary  assessment,  is  not  in  conflict  with  this  section.  (Orena 
V.  Sherman,  61  Cal.  101.) 

This  section  only  has  reference  to  prospective  assessments,  and  does 
not  supersede  a  provision  of  a  city  charter.  (Stockton  v.  Western 
Fire  etc.  Ins.  Co.,  73  Cal.  621,  15  Pac.  314.) 


Art.  XIII,  §  9  CONSTITUTION  OF  1879.  532 

This  section  has  no  application  to  the  assessment  of  property  in  in- 
corporated cities  for  local  purposes.  (Escondido  v.  Escondido  Lumber 
etc.  Co.,  8  Cal.  App.  435,  97  Pac.  197.) 

This  section  designates  the  time  when  the  assessable  character  of 
property  becomes  fixed,  namely,  at  twelve  o'clock  meridian  on  the 
first  Monday  in  March,  and  property  exempt  from  taxation  on  that 
day  cannot  be  assessed  later,  nor  is  the  owner  of  property  required 
to  include  in  his  return  to  the  assessor  any  property  not  subject  to 
taxation  on  the  first  Monday  in  March.  (Dodge  v.  Nevada  Nat. 
Bank,  109  Fed.  726,  48  C.  C.  A.  626.) 

State  board  of  equalization. 

Sec.  9.  A  state  board  of  equalization,  consisting  of  one 
member  from  each  congressional  district  in  this  state,  as 
the  same  existed  in  eighteen  hundred  and  seventy-nine, 
shall  be  elected  by  the  qualified  electors  of  their  respective 
districts,  at  the  general  election  to  be  held  in  the  year  one 
thousand  eight  hundred  and  eighty-six,  and  at  each  guber- 
natorial election  thereafter,  whose  term  of  office  shall  be 
for  four  years,  whose  duty  it  shall  be  to  equalize  the  valua- 
tion of  the  taxable  property  in  the  several  counties  of  the 
state  for  the  purposes  of  taxation.  The  controller  of  state 
shall  be  ex  officio  a  member  of  the  board.  The  boards  of 
supervisors  of  the  several  counties  of  the  state  shall  consti- 
tute boards  of  equalization  for  their  respective  counties, 
whose  duty  it  shall  be  to  equalize  the  valuation  of  the  taxa- 
able  property  in  the  county  for  the  purpose  of  taxation ; 
provided,  such  state  and  county  boards  of  equalization  are 
hereby  authorized  and  empowered,  under  such  rules  of 
notice  as  the  county  boards  may  prescribe  as  to  the  county 
assessments,  and  under  such  rules  of  notice  as  the  state 
board  may  prescribe  as  to  the  action  of  the  state  board,  to 
increase  or  lower  the  entire  assessment-roll,  or  any  assess- 
ment contained  therein,  so  as  to  equalize  the  assessment  of 
the  property  contained  in  said  assessment-roll  and  make 
the  assessment  conform  to  the  true  value  in  money  of  the 
property  contained  in  said  roll;  provided,  that  no  board 
of  equalization  shall  raise  any  mortgage,  deed  of  trust,  con- 
tract, or  other  obligation  by  which  a  debt  is  secured,  money 
or  solvent  credits,  above  its  face  value.  The  present  state 
board  of  equalization  shall  continue  in  office  until  their  sue- 


I 


533  REVENUE  AND  TAXATION.  Art.  XIII,  §  9 

cessors,  as  herein  provided  for,  shall  be  elected  and  shall 
qualify.  The  legislature  shall  have  power  to  redistrict  the 
state  into  four  districts,  as  nearly  equal  in  population  as 
practicable,  and  to  provide  for  the  election  of  members  of 
said  board  of  equalization.  (Ratification  declared  Febru- 
ary 12,  1885.) 

[OEIGINAL    SECTION.] 

Sec.  9.  A  state  board  of  equalization,  consisting  of  one  member 
from  each  congressional  district  in  this  state,  shall  be  elected  by 
the  qualified  electors  of  their  respective  districts  at  the  general 
election  to  be  held  in  the  year  eighteen  hundred  and  seventy-nine, 
whose  term  of  office,  after  those  first  elected,  shall  be  four  years, 
whose  duty  it  shall  be  to  equalize  the  valuation  of  the  taxable 
property  of  the  several  counties  in  the  state  for  the  purposes  of 
taxation.  The  controller  of  state  shall  be  ex  officio  a  member  of 
the  board.  The  boards  of  supervisors  of  the  several  counties  of 
the  slate  shall  constitute  boards  of  equalization  for  their  respec- 
tive counties,  whose  duty  it  shall  be  to  equalize  the  valuation  of 
the  taxable  property  in  the  county  for  the  purpose  of  taxation; 
provided,  such  state  and  county  boards  of  equalization  are  hereby 
authorized  and  empowered,  under  such  rules  of  notice  as  the  county 
board  may  prescribe  as  to  the  county  assessments,  and  under  such 
rules  of  notice  as  the  state  board  may  prescribe,  as  to  the  action 
of  the  state  board,  to  increase  or  lower  the  entire  assessment-roll, 
or  any  assessment  contained  therein,  so  as  to  equalize  the  assess- 
ment of  the  property  contained  in  said  assessment-roll,  and  make 
the  assessment  conform  to  the  true  value  in  money  of  the  property 
contained  in  said  roll. 

[An  amendment  to  this  section  was  voted  upon  November  6, 
1894,  but,  although  it  appears  in  some  publications  as  having  been 
ratified,  it  was  defeated  by  a  vote  of  88,60.5  noes  to  86,777  ayes.] 

BOABD  OF  EQUALIZATION.  —  It  is  within  the  constitutional 
power  of  the  legislature  to  create  a  state  board  of  equalization. 
(Savings  etc.  Soc.  v.  Austin,  46  Cal.  415.) 

Section  1666  of  the  Political  Code  is  unconstitutional,  in  so  far  as 
it  delegates  to  the  state  board  of  equalization  the  right  to  fix  the  rate 
of  taxation  "after  allowing  for  delinquency  in  the  collection  of  taxes," 
because  it  is  a  delegation  of  legislative  power.  (Houghton  v.  Austin, 
47  Cal.  646.  Savings  etc.  Soc.  v.  Austin,  46  Cal.  415,  overruled  on 
this  point.  See,  also,  Grimm  v.  O'Connell,  54  Cal.  522;  Wills  v.  Aus- 
tin, 53  Cal.  152;  Harper  v.  Rowe,  53  Cal.  233.) 

The  state  board  of  equalization  has  no  power  to  make  a  reassess- 
ment and  reapportionment  of  taxes  upon  a  railroad  for  previous 
years,  if  the  taxes  for  such  years  were  originally  validly  assessed  and 
apportioned.  (Colusa  County  v.  Glenn  County,  124  Cal.  498,  57  Pac. 
477.) 

Mandamus  will  not  lie  to  compel  the  assessor  to  assess  property  in 
excess  of  its  value,  upon  the  ground  that  it  was  greatly  undervalued 


Art.  XIII,  §  9  CONSTITUTION  OF  1879.  534 

in  the  previous  fiscal  year.  (Clunie  v.  Siebe,  112  Cal.  593,  44  Pac. 
1064.) 

As  to  the  notice  to  be  given  by  the  board  to  the  taxpayer,  see  Alli- 
son Ranch  etc.  Co.  v.  Nevada  Co.,  104  Cal.  161,  37  Pac.  875. 

Section  3861  of  the  Political  Code,  requiring  the  assessor,  at  the  re- 
quest of  the  board  of  equalization,  to  list  and  assess  property  which 
he  has  failed  to  assess,  is  not  in  conflict  with  this  section,  since  it 
simply  confers  an  additional  power  upon  the  board.  (Farmers'  etc. 
Bank  v.  Board  of  Equalization,  97  Cal.  318,  32  Pac.  312.) 

An  act  authorizing  an  assessment  of  taxes,  after  the  time  within 
which  the  board  of  supervisors  can  meet  for  the  purpose  of  equaliza- 
tion, is  violative  of  this  section.  (People  v.  Pittsburg  R.  R.  Co.,  67 
Cal.  625,  8  Pac.  381.) 

The  state  board  of  equalization  has  power  to  increase  or  lower  the 
assessment-roll  of  a  county  so  as  to  affect  taxes  for  county  purposes. 
(Baldwin  v.  Ellis,  68  Cal.  495,  9  Pac.  652.) 

The  action  of  the  state  board  of  equalization  in  raising  the  assess- 
ment-roll of  a  county  under  this  section  operates  upon  mortgage  as- 
sessments.    (Schroeder  v.  Grady,  66  Cal.  212,  5  Pac.  81.) 

The  state  board  of  equalization  has  no  power  to  increase  the  assess- 
ment of  money,  where  the  money  is  already  assessed  at  its  face  value. 
(People  v.  Dunn,  59  Cal.  328.) 

A  refusal  of  a  state  board  of  equalization  to  reduce  an  assessment 
does  not  preclude  the  board  from  afterward  raising  the  same  assess- 
ment.    (Central  Pac.  R.  R.  Co.  v.  Board  of  Equalization,  46  Cal.  667.) 

The  board  of  equalization  has  no  power  to  strike  out  from  an  as- 
sessment, made  by  an  assessor,  property  assessed  by  him.  (People  v. 
Board  of  Supervisors,  50  Cal.  282.) 

The  board  of  equalization  has  no  power  to  cancel  an  assessment  for 
taxes  placed  by  the  assessor  upon  the  assessment-roll.  (People  r. 
Board  of  Supervisors,  44  Cal.  613.) 

The  board  of  equalization,  in  passing  on  the  question  whether  an 
assessment  is  too  high  or  too  low,  acts  in  a  judicial  capacity.  (People 
V.  Goldtree,  44  Cal.  323.) 

A  board  of  equalization  acts  judicially  in  raising  or  lowering  an 
assessment,  and  has  no  arbitrary  power  of  assessment  or  reassess- 
ment. It  cannot  act  without  a  hearing,  upon  notice  given  to  the 
person  assessed,  nor  change  an  assessment  made  by  the  assessor  with- 
out evidence  adduced  authorizing  such  change.  (City  of  Oakland  v. 
Southern  Pac.  R.  R.  Co.,  131  Cal.  226,  63  Pac,  371.) 

In  order  to  give  the  board  of  equalization  jurisdiction  to  increase 
the  valuation  of  property  assessed,  the  filing  of  a  complaint  is  neces- 
sary.    (People  V.  Goldtree,  44  Cal.  323.) 

The  state  board  of  equalization  cannot  delegate  to  its  clerk  author- 
ity to  issue  orders  prolonging  the  time  of  the  sessions  of  the  county 
boards  of  equalization.  (Buswell  v.  Board  of  Supervisors,  116  Cal. 
351,  48  Pac.  226.) 

The  board  of  equalization  may  appoint  a  committee  to  take  testi- 
mony as  to  the  valuation  of  property.  (People  v.  McCreery,  34  Cal. 
432.) 


I 


535  REVENUE  AND  TAXATION.  Art.  XlII,  §  10 

The  presumption  of  law  is  that  a  board  of  equalization  perform 
their  duty  and  correct  any  inequality  in  the  assessment  of  taxes. 
(Guy  V.  Washburn,  23  Cal.  111.) 

The  proviso  to  this  section  is  to  be  read  distributively,  that  is  to 
say,  as  authorizing  the  state  board  to  increase  or  lower  the  entire 
assessment-roll  of  any  county,  and  the  county  boards  to  increase  or 
lower  the  individual  assessments  of  their  respective  counties.  The 
state  board,  therefore,  has  no  power  to  increase  or  lower  individual 
assessments;  nor  has  a  county  board  the  power  to  increase  or  lower 
the  entire  assessment-roll.  (Wells,  Fargo  &  Co.  v.  Board  of  Equali- 
zation, 56  Cal.  194;  San  Francisco  etc.  R.  R.  Co.  v.  State  Board  of 
Equalization,  60  Cal.  12.) 

This  section  does  not  make  it  necessary  for  a  county  board,  in  a 
return  to  a  writ  of  certiorari,  to  set  out  general  rules  of  notice 
adopted  by  the  board.    (Garretson  v.  Board  of  Supervisors,  61  Cal.  54.) 

Property,  where  assessed. 

Sec.  10.  All  property,  except  as  otherAvise  in  this  Con- 
stitution provided,  shall  be  assessed  in  the  county,  city,  city 
and  county,  town  or  township,  or  district  in  which  it  is  situ- 
ated, in  the  manner  prescribed  by  law,  (Amendment 
adopted  November  8,  1910.  This  amendment  was  adopted 
as  a  part  of  the  same  amendment  by  which  section  14  of 
this  article  was  added.     See  note  to  that  section.) 

[ORIGINAL   SECTION.] 

Sec.  10.  All  property,  except  as  hereinafter  in  this  section  pro- 
vided, shall  be  assessed  in  the  county,  city,  city  and  county,  town, 
township,  or  district  in  which  it  is  situated,  in  the  manner  pre- 
scribed by  law.  The  franchise,  roadway,  roadbed,  rails  and  roll- 
ing stock  of  all  railroads  operated  in  more  than  one  county  in  this 
state  shall  be  assessed  by  the  state  board  of  equalization,  at  theii- 
actual  value,  and  the  same  shall  be  apportioned  to  the  counties, 
cities  and  counties,  cities,  towns,  townships,  and  districts  in  which 
such  railroads  are  located,  in  proportion  to  the  number  of  miles 
of  railway  laid  in  such  counties,  cities  and  counties,  cities,  towns, 
townships,  and  districts. 

SITUS  OF  PROPERTY.  —  This  section  is  self -executing.  (San 
Francisco  etc.  R.  R.  Co.  v.  State  Board  of  Equalization,  60  Cal.  12.) 

It  has  no  relation  to  the  assessment  of  the  property  of  railroad 
corporations,  operated  in  more  than  one  county.  (Central  Pac.  R.  R. 
Co.  V.  Board  of  Equalization,  60  Cal.  35.) 

Boards  of  supervisors  of  the  several  counties  through  which  run 
railroads  operated  in  more  than  one  county  have  no  jurisdiction  to 
raise  or  lower  the  assessment  placed  upon  the  property  of  such  roads 
by  the  board  of  equalization.  (People  v.  Sacramento  County  Suprs., 
59  Cal.  321.) 


Art.  XIII,  §  10        CONSTITUTION  OF  1879.  536 

This  provision  has  reference  to  the  permanent  situs  of  the  property, 
as  clistingnished  from  the  place  of  temporary  sojourn,  or  transit. 
(Rosasco  V.  Tuolumne  County,  143  Cal.  430,  77  Pac.  148.) 

Place  of  taxation  of  realty  situate  in  more  than  one  taxing  dis- 
trict.    See  note,  18  Ann.  Cas.  713. 
Situs  of  personal  property  for  purposes  of  taxation.     See  notes, 
56  Am.  Dec.  522;  62  Am.  St.  Kep.  448. 

Water  ditches  for  irrigating  purposes  must  be  assessed  the  same 
as  real  estate  in  the  county  in  which  they  are  situated.  (Kern  Val- 
ley Water  Co.  v.  County  of  Kern,  137  Cal.  511,  70  Pac.  476.) 

Section  39  of  the  Wright  Irrigation  Act,  providing  that  if  the 
trustees  of  the  district  fail  to  levy  a  tax  to  pay  the  bonds  of  the  dis- 
trict, the  board  of  supervisors  shall  do  so,  is  constitutional.  (Nevada 
Nat.  Bank  v.  Board  of  Supervisors,  5  Cal.  App.  638,  91  Pac.  122.) 

The  franchise  to  collect  water  rates  is  taxable  in  the  county  where 
exercised.  (San  Joaquin  etc.  Irr.  Co.  v.  Merced  County,  2  Cal.  App. 
593,  84  Pac.   285.) 

The  franchise  to  be  a  corporation  is  taxable  at  the  principal  place 
of  business  of  the  corporation.  (San  Joaquin  etc.  Irr.  Co.  v.  Merced 
County,  2  Cal.  App.  593,  84  Pac.  285.) 

Place  of  taxation  of  corporate  franchise.  See  note,  7  Ann.  Cas. 
518. 

Th'e  franchise  to  lay  pipes  and  conduits  or  erect  poles  is  real  estate, 
and  is  inseparably  annexed  to  the  soil,  and  has  a  local  situation  in  the 
place  where  the  right  is  exercised,  and  can  only  be  assessed  in  the 
counties  where  it  is  situated.  (Stockton  Gas  etc.  Co.  v.  San  Joaquin 
County,  148  Cal.  313,  7  Ann.  Cas.  511,  5  L.  R.  A.  (N.  S.)  174,  83 
Pac.  54.) 

Place  of  taxation  of  tangible  personalty  of  corporation  as  de- 
pendent upon  location  of  principal  oifice.  See  note,  19  Ann. 
Cas.  958. 

Steamers  used  by  a  railroad  company  in  transporting  its  freight- 
cars  across  the  bay  of  San  Francisco  are  not  included  in  the  property 
mentioned  in  this  section,  and  should  be  assessed  by  the  local  asses- 
sor, and  not  by  the  state  board  of  equalization.  (San  Francisco  v. 
Central  Pac.  R.  R.  Co.,  63  Cal.  467,  49  Am.  Rep.  98;  State  of  Cali- 
fornia V.  Central  Pacific  R.  Co.,  127  U.  S.  1,  32  L.  Ed.  150,  8  Sup.  Ct. 
Rep.  1073.) 

Vessels  not  having  any  actual  situs  are  properly  assessed  at  the 
domicile  of  the  owner  when  registered.  (California  Shipping  Co.  v. 
San  Francisco,  150  Cal,  145,  88  Pac.  704.) 

Situs  of  vessels  for  purpose  of  taxation.  See  notes,  3  Ann.  Cas. 
1103;   20   Ann.   Cas.  966. 

For  the  purpose  of  taxation,  the  situs  of  money  belonging  to  the 
estate  of  a  decedent  is  in  the  county  where  the  decedent  resided  at 
the  time  of  his  death,  and  the  situs  is  not  changed  by  placing  the 
money  on  general  deposit  in  a  bank  of  another  county.  (City  and 
County  of  San  Francisco  v.  Lux,  64  Cal.  481,  2  Pac.  254.) 


537  REVENUE  AND  TAXATION.  Art.  XIII,  §  1<j 

Situs  of  personal  property  of  decedent  for  purpose   of  taxation. 

See  notes,  1  Ann.  Cas.  438;  20  Ann.  Cas.  729. 
Situs  of  interest  of  deceased  partner  in  partnership  for  purposes 

of  taxation.     See  note,  9  Ann.  Cas.  692. 

Debts  are  taxable  at  the  domicile  of  the  creditor.  (Pacific  Coast 
etc.  Soc.  V.  San  Francisco,  133  Cal.  14,  65  Pac.  16.) 

ASSESSMENT  OF  RAILROADS. — This  section  does  not  in  terms 
require  the  assessed  value  of  the  franchise,  roadway,  roadbed,  rails, 
and  rolling  stock,  to  be  separately  apportioned.  (San  Francisco  etc. 
E,  K.  Co.  V.  State  Board  of  Equalization,  60  Cal.  12.) 

Situs  for  taxation  of  rolling  stock.     See  note,  10  Ann.  Cas.  355. 

The  provisions  of  this  section  do  not  apply  to  "street"  railroads, 
though  operating  in  more  than  one  county.  (San  Francisco  etc.  Ry. 
Co.  V.  Scott,  142  Cal.  222,  75  Pac.  575;  Huntington  v.  Curry,  14  Cal. 
App.  468,  112  Pac.  583.) 

A  county  has  no  authority  to  collect  taxes  upon  a  railroad  operated 
in  more  than  one  county,  which  are  due  to  a  school  district.  (San 
Bernardino  County  v.  Southern  Pac.  R.  R.  Co.,  137  Cal.  659,  70  Pac. 
782.) 

A  law  providing  for  the  assessment  and  collection  of  taxes  upon 
railroads  operating  in  more  than  one  county  is  valid.  (People  v.  Cen- 
tral Pac.  R.  R.  Co.,  105  Cal.  576,  38  Pac.  905;  affirmed.  Central  Pac. 
R.  R.  Co.  V.  People,  162  U.  S.  91,  40  L.  Ed.  903,  16  Sup.  Ct.  Rep.  766; 
People  V.  Central  Pac.  R.  R.  Co.,  83  Cal.  393,  23  Pac.  303,  overruled.) 

In  making  a  reassessment  of  railroad  taxes,  to  take  the  place  of  an 
invalid  assessment  of  a  previous  year,  it  is  the  duty  of  the  board  to 
make  the  apportionment  to  the  counties  as  they  existed  at  the  time 
of  the  invalid  assessment,  and  not  at  the  time  of  the  reassessment. 
(San  Diego  County  v.  Riverside  County,  125  Cal.  495,  58  Pac.  81.) 

The  power  of  the  board  of  equalization  to  assess  railroad  property 
depends  wholly  upon  the  constitutional  grant  of  powers  thereto,  and 
constitutes  an  express  exception  to  the  general  rule  which  requires 
all  property  to  be  assessed  locally.  It  is  only  where  the  property 
comes  under  the  head  of  "franchise,  roadway,  roadbed,  rails  and  roll- 
ing stock"  of  a  railroad  operated  in  more  than  one  county,  that  it 
can  be  assessed  by  the  state  board  of  equalization.  (Atchison  etc. 
Ry.  Co.  V.  Los  Angeles  County,  158  Cal.  437,  111  Pac.  250.) 

The  state  board  can  only  assess  the  franchise,  roadway,  roadbed 
and  rolling  stock  of  railroads.  All  improvements  situated  on  or  o!f 
the  right  of  way  are  to  be  assessed  by  the  local  authorities.  (San 
Francisco  &  S.  J.  Ry.  Co.  v.  Stockton,  149  Cal.  83,  84  Pac.  771.) 

Fences  along  the  line  of  a  railway  are  not  a  part  of  the  roadbed  or 
roadway  of  such  railroad,  and  are  not  assessable  by  the  state  board 
under  this  section.  (Santa  Clara  County  v.  Southern  Pacific  R.  R. 
Co.,  118  IT.  S.  394,  30  L.  Ed.  118,  6  Sup.  Ct.  Rep.  1132.) 

Railroad  property  consisting  of  blocks  of  land  adjoining  the  right 
of  way,  acquired  and  used  for  station  purposes,  for  a  passenger 
depot,  for  a  freight-house,  with  spur  tracks  and  sidings,  for  a  round- 
house, for  machine-shops,  for  a  storehouse,  with  materials  for  con- 
struction purposes,  with  tracks  for  switching  and  repairing  purposes. 


Art.  XIII,  §§  101/2-12%     CONSTITUTION  OF  1879.  538 

for  a  water-tank  and  for  a  cattle-yard,  and  also  a  riglit  of  way  and 
roadbed  never  used  or  operated  for  railroad  purposes,  are  to  ba  as- 
sessed exclusively  by  the  city  assessor.  (San  Francisco  &  S.  J.  V. 
Ey.  Co.  V.  Stockton,  149  Cal.  83,  84  Pac.  771.) 

It  is  constitutional  to  assess  a  franchise  of  an  electric  ligbt  and 
power  company  to  use  county  highways,  in  each  school  district,  by 
valuing  it  according  to  the  number  of  miles  of  transmission  lines  in 
that  district,  without  reference  to  the  extent  of  the  public  highways 
over  which  the  lines  were  erected.  (Kern  River  Co.  v.  County  of 
Los  Angeles,  164  Cal.  751,  130  Pac.  714.) 

Personal  property  to  extent  of  one  hundred  dollars  exempt. 

Sec.  10l^.  The  personal  property  of  every  householder 
to  the  amount  of  one  hundred  dollars,  the  articles  to  be 
selected  by  each  householder,  shall  be  exempt  from  taxa- 
tion. (New  section  added  by  amendment  approved  Novem- 
ber 8,  1904.) 

Income  taxes. 

Sec.  11.  Income  taxes  may  be  assessed  to  and  collected 
from  persons,  corporations,  joint-stock  associations,  or  com- 
panies resident  or  doing  business  in  this  state,  or  any  one 
or  more  of  them,  in  such  cases  and  amounts,  and  in  such 
manner,  as  shall  be  prescribed  by  law. 

Poll  tax. 

Sec.  12.  No  poll  tax  or  head  tax  for  any  purpose  what- 
soever shall  be  levied  or  collected  in  the  state  of  California. 
(Amendment  adopted  November  3,  1914.) 

[ORIGINAL  SECTION.] 
Sec.  12.  The  legislature  shall  provide  for  the  levy  and  collec- 
tion of  an  annual  poll  tax  of  not  less  than  two  dollars  on  every 
male  inhabitant  of  this  state,  over  twenty-one  and  under  sixty 
years  of  age,  except  paupers,  idiots,  insane  persons,  and  Indians 
not  taxed.     Said  tax  shall  be  paid  into  the  state  school  fund. 

POLL  TAXES. — A  statute  authorizing  county  assessors  to  retain, 
as  their  compensation  in  collecting,  fifteen  per  cent  of  all  poll  taxes 
collected  by  them,  is  not  in  conflict  with  this  section.  (San  Luis 
Obispo  County  v.  Felts,  104  Cal.  60,  37  Pac.  780.) 

The  poll  tax  levied  under  this  section  is  a  state  tax.  (Alameda 
County  V.  Dalton,  148  Cal.  246,  82  Pac.  1050.) 

Young-  trees  and  vines  exempt  from  taxation. 

Sec.  12%.  Fruit  and  nut-bearing  trees  under  the  age  of 
four  years  from  the  time  of  planting  in  orchard  form,  and 


539  REVENUE  AND   TAXATION.      Art.  XIII,  §§  13,  1-i 

grapevines  under  the  age  of  three  years  from  the  time  of 
planting  in  vineyard  form,  shall  be  exempt  from  taxation, 
and  nothing  in  this  article  shall  be  construed  as  subjecting 
such  trees  and  grapevines  to  taxation.  (Amendment 
adopted  November  6,  1894.) 

Laws  to  be  passed  by  legislature. 

Sec.  13.  The  legislature  shall  pass  all  laws  necessary  to 
carry  out  the  provisions  of  this  article. 

Legislation. — Under  this  provision  the  legislature  may  define  the 
words  "improvements"  and  "property."  (Miller  v.  County  of  Kern, 
137  Cal.  516,  70  Pac.  549.) 

Taxes  for  state  purposes. 

Sec.  14.  Taxes  levied,  assessed  and  collected  as  herein- 
after provided  upon  railroads,  including  street  railways, 
whether  operated  in  one  or  more  counties;  sleeping-car, 
dining-car,  drawing-room  car  and  palace-car  companies, 
refrigerator,  oil,  stock,  fruit,  and  other  car-loaning  and 
other  car  companies  operating  upon  railroads  in  this  state  -, 
companies  doing  express  business  on  any  railroad,  steam- 
boat, vessel  or  stage  line  in  this  state ;  telegraph  companies ; 
telephone  companies;  companies  engaged  in  the  transmis- 
sion or  sale  of  gas  or  electricity ;  insurance  companies ; 
banks,  banking  associations,  savings  and  loan  societies,  and 
trust  companies ;  and  taxes  upon  all  franchises  of  every 
kind  and  nature,  shall  be  entirely  and  exclusively  for  state 
purposes,  and  shall  be  levied,  assessed  and  collected  in  the 
manner  hereinafter  provided.  The  word  "companies"  as 
used  in  this  section  shall  include  persons,  partnerships, 
joint-stock  associations,  companies,  and  corporations. 

*Taxes  on  railroads,  express  companies,  telegraph  and  tele- 
phone companies,  gas  and  electric  companies. 

(a)  All  railroad  companies,  including  street  railways, 
whether  operated  in  one  or  more  counties ;  all  sleeping-car, 
dining-car,  drawing-room  car,  and  palace-car  companies,  all 
refrigerator,    oil,    stock,    fruit   and    other    car-loaning    and 


*The  headings  found  in  this  section  are  not  part  of  the  enactment 
but  are  inserted  for  convenience  of  reference. 


Art.  XIII,  §  14         CONSTITUTION  OF  1879.  540 

other  car  companies,  operating  upon  the  railroads  in  this 
state ;  all  companies  doing  express  business  on  any  railroad, 
steamboat,  vessel  or  stage  line,  in  this  state;  all  telegraph 
and  telephone  companies;  and  all  companies  engaged  in 
the  transmission  or  sale  of  gas  or  electricity  shall  annually 
pay  to  the  state  a  tax  upon  their  franchises,  roadways, 
roadbeds,  rails,  rolling  stock,  poles,  wires,  pipes,  canals,  con- 
duits, rights  of  way,  and  other  property,  or  any  part 
thereof,  used  exclusively  in  the  operation  of  their  business 
in  this  state,  computed  as  follows:  Said  tax  shall  be  equal 
to  the  percentages  hereinafter  fixed  upon  the  gross  receipts 
from  operation  of  such  companies  and  each  thereof  within 
this  state.  When  such  companies  are  operating  partly 
within  and  partly  without  this  state,  the  gross  receipts 
within  this  state  shall  be  deemed  to  be  all  receipts  on  busi- 
ness beginning  and  ending  within  this  state,  and  a  propor- 
tion, based  upon  the  proportion  of  the  mileage  within  this 
state  to  the  entire  mileage  over  which  such  business  is  done, 
of  receipts  on  all  business  passing  through,  into,  or  out  of 
this  state. 

*The  percentages  above  mentioned  shall  be  as  follows : 
On  all  railroad  companies,  including  street  railways,  four 
per  cent;  on  all  sleeping-car,  dining-car,  drawing-room  car, 
palace-car  companies,  refrigerator,  oil,  stock,  fruit  and 
other  car-loaning  and  other  car  companies,  three  per  cent; 
on  all  companies  doing  express  business  on  any  railroad, 
steamboat,  vessel  or  stage  line,  two  per  cent;  on  all  tele- 
graph and  telephone  companies,  three  and  one-half  per 
cent;  on  all  companies  engaged  in  the  transmission  or  sale 
of  gas  or  electricity,  four  per  cent.  Such  taxes  shall  be  in 
lieu  of  all  other  taxes  and  licenses,  state,  county  and  muni- 
cipal, upon  the  property  above  enumerated  of  such  compa- 
nies except  as  otherwise  in  this  section  provided ;  provided, 
that  nothing  herein  shall  be  construed  to  release  any  such 
company  from  the  payment  of  any  amount  agreed  to  be 
paid  or  required  by  law  to  be  paid  for  any  special  privilege 


*These  percentages  have  been  twice  changed  by  the  legislature 
under  the  authority  given  by  subdivision  (f)  of  this  section.  See 
Statutes,  1913,  p.  3,  and  1915,  p.  3. 


541  REVENXJE  AND  TAXATION.  Art.  XIII,  §  14 

or  franchise  granted  by  any  of  the  municipal  authorities  of 
this  state. 

Taxes  on  insurance  companies. 

(b)  Every  insurance  company  or  association  doing  busi- 
ness in  this  state  shall  annually  pay  to  the  state  a  tax  of 
one  and  one-half  per  cent  upon  the  amount  of  the  gross 
premiums  received  upon  its  business  done  in  this  state,  less 
return  premiums  and  reinsurance  in  companies  or  associa- 
tions authorized  to  do  business  in  this  state ;  provided,  that 
there  shall  be  deducted  from  said  one  and  one-half  per  cent 
upon  the  gross  premiums  the  amount  of  any  county  and 
municipal  taxes  paid  by  such  companies  on  real  estate 
owned  by  them  in  this  state.  This  tax  shall  be  in  lieu  of 
all  other  taxes  and  licenses,  state,  county  and  municipal, 
upon  the  property  of  such  companies,  except  county  and 
municipal  taxes  on  real  estate,  and  except  as  otherwise  in 
this  section  provided;  provided,  that  when  by  the  laws  of 
any  other  state  or  country,  any  taxes,  fines,  penalties, 
licenses,  fees,  deposits  of  money,  or  of  securities,  or  other 
obligations  or  prohibitions  are  imposed  on  insurance  com- 
panies of  this  state,  doing  business  in  such  other  state  or 
country,  or  upon  their  agents  therein,  in  excess  of  such 
taxes,  fines,  penalties,  licenses,  fees,  deposits  of  money,  or 
of  securities,  or  other  obligations  or  prohibitions,  imposed 
upon  insurance  companies  of  such  other  state  or  country, 
so  long  as  such  laws  continue  in  force,  the  same  obligations 
and  prohibitions  of  whatsoever  kind  may  be  imposed  by 
the  legislature  upon  insurance  companies  of  such  other 
state  or  country  doing  business  in  this  state. 

Taxes  on  bank  stock. 

(c)  The  shares  of  capital  stock  of  all  banks,  organized 
under  the  laAvs  of  this  state,  or  of  the  United  States,  or  of 
any  other  state  and  located  in  this  state,  shall  be  assessed 
and  taxed  to  the  owners  or  holders  thereof  by  the  state 
board  of  equalization,  in  the  manner  to  be  prescribed  by 
law,  in  the  city  or  town  Avhere  the  bank  is  located  and  not 
elsewhere.  There  shall  be  levied  and  assessed  upon  such 
shares  of  capital  stock  an  annual  tax,  payable  to  the  state, 


Art.  XIII,  §  14         CONSTITUTION  OF  1879.  542 

of  one  per  centum  upon  the  value  thereof.  The  value  of 
each  share  of  stock  in  each  bank,  except  such  as  are  in 
liquidation,  shall  be  taken  to  be  the  amount  paid  in  thereon, 
together  with  its  pro  rata  of  the  accumulated  surplus  and 
undivided  profits.  The  value  of  each  share  of  stock  in 
each  bank  which  is  in  liquidation  shall  be  taken  to  be  its 
pro  rata  of  the  actual  assets  of  such  bank.  This  tax  shall 
be  in  lieu  of  all  other  taxes  and  licenses,  state,  county  and 
municipal,  upon  such  shares  of  stock  and  upon  the  prop- 
erty of  such  banks,  except  county  and  municipal  taxes  on 
real  estate  and  except  as  otherwise  in  this  section  pro- 
vided. In  determining  the  value  of  the  capital  stock  of 
any  bank  there  shall  be  deducted  from  the  value,  as  de- 
fined above,  the  value,  as  assessed  for  county  taxes,  of  any 
real  estate,  other  than  mortgage  interests  therein,  owned 
by  such  bank  and  taxed  for  county  purposes.  The  banks 
shall  be  liable  to  the  state  for  this  tax  and  the  same  shall 
be  paid  to  the  state  by  them  on  behalf  of  the  stockholders 
in  the  manner  and  at  the  time  prescribed  by  law,  and  they 
shall  have  a  lien  upon  the  shares  of  stock  and  upon  any 
dividends  declared  thereon  to  secure  the  amount  so  paid. 

Taxes  on  unincorporated  banks. 

The  moneyed  capital,  reserve,  surplus,  undivided  profits 
and  all  other  property  belonging  to  unincorporated  banks 
or  bankers  of  this  state,  or  held  by  any  bank  located  in 
this  state  which  has  no  shares  of  capital  stock,  or  em- 
ployed in  this  state  by  any  branches,  agencies,  or  other 
representatives  of  any  banks  doing  business  outside  of  the 
state  of  California,  shall  be  likewise  assessed  and  taxed 
to  such  banks  or  bankers  by  the  said  board  of  equalization, 
in  the  manner  to  be  provided  by  law,  and  taxed  at  the 
same  rate  that  is  levied  upon  the  shares  of  capital  stock 
of  incorporated  banks,  as  provided  in  the  first  paragraph 
of  this  subdivision.  The  value  of  said  property  shall  be 
determined  by  taking  the  entire  property  invested  in  such 
business,  together  with  all  the  reserve,  surplus,  and  un- 
divided profits,  at  their  full  cash  value,  and  deducting 
therefrom  the  value  as  assessed  for  county  taxes  of  any 


543  REVENUE  AND  TAXATION.  Art.  XIII,  §  14 

real  estate,  other  than  mortgage  interests  therein,  owned 
by  such  bank  and  taxed  for  county  purposes.  Such  taxes 
shall  be  in  lieu  of  all  other  taxes  and  licenses,  state,  county 
and  municipal,  upon  the  property  of  the  banks  and  bank- 
ers mentioned  in  this  paragraph,  except  county  and  muni- 
cipal taxes  on  real  estate  and  except  as  otherwise  in  this 
section  provided.  It  is  the  intention  of  this  paragraph 
that  all  moneyed  capital  and  property  of  the  banks  and 
bankers  mentioned  in  this  paragraph  shall  be  assessed  and 
taxed  at  the  same  rate  as  an  incorporated  bank,  provided 
for  in  the  first  paragraph  of  this  subdivision.  In  deter- 
mining the  value  of  the  moneyed  capital  and  property  of 
the  banks  and  bankers  mentioned  in  this  subdivision,  the 
said  state  board  of  equalization  shall  include  and  assess 
to  such  banks  all  property  and  everything  of  value  owned 
or  held  by  them,  which  go  to  make  up  the  value  of  the 
capital  stock  of  such  banks  and  bankers,  if  the  same  w^ere 
incorporated  and  had  shares  of  capital  stock. 

The  word  "banks"  as  used  in  this  subdivision  shall  in- 
clude banking  associations,  savings  and  loan  societies  and 
trust  companies,  but  shall  not  include  building  and  loan 
associations. 

Taxes  on  franchises. 

(d)  All  franchises,  other  than  those  expressly  provided 
for  in  this  section,  shall  be  assessed  at  their  actual  cash 
value,  in  the  manner  to  be  provided  by  law,  and  shall  be 
taxed  at  the  rate  of  one  per  centum  each  year,  and  the 
taxes  collected  thereon  shall  be  exclusively  for  the  benefit 
of  the  state. 

School  and  university  funds. 

(e)  Out  of  the  revenues  from  the  taxes  provided  for  in 
this  section,  together  with  all  other  state  revenues,  there 
shall  be  first  set  apart  the  moneys  to  be  applied  by  the 
state  to  the  support  of  the  public  school  system  and  the 
state  university.  In  the  event  that  the  above-named  reve- 
nues are  at  any  time  deemed  insufficient  to  meet  the  annual 
expenditures  of  the  state,  including  the  above-named  ex- 
penditures for  educational  purposes,  there  may  be  levied, 


Art.  XIII,  §  14         CONSTITUTION  OF  1879.  544 

in  the  manner  to  be  provided  by  law,  a  tax,  for  state  pur- 
poses, on  all  the  property  in  the  state,  including  the  classes 
of  property  enumerated  in  this  section,  sufficient  to  meet 
the  deficiency.  All  property  enumerated  in  subdivisions 
a,  b,  and  d  of  this  section  shall  be  subject  to  taxation,  in 
the  manner  provided  by  law  to  pay  the  principal  and  in- 
terest of  any  bonded  indebtedness  created  and  outstand- 
ing by  any  city,  city  and  county,  county,  town,  township 
or  district,  before  the  adoption  of  this  section.  The  taxes 
so  paid  for  principal  and  interest  on  such  bonded  indebted- 
ness shall  be  deducted  from  the  total  amount  paid  in  taxes 
for  state  purposes. 

Provisions  self-executing,  etc. 

(f)  All  the  provisions  of  this  section  shall  be  self-exe- 
cuting, and  the  legislature  shall  pass  all  laws  necessary  to 
carry  this  section  into  effect,  and  shall  provide  for  a  valua- 
tion and  assessment  of  the  property  enumerated  in  this 
section,  and  shall  prescribe  the  duties  of  the  state  board  of 
equalization  and  any  other  officers  in  connection  with  the 
administration  thereof.  The  rates  of  taxation  fixed  by 
this  section  shall  remain  in  force  until  changed  by  the 
legislature,  two-thirds  of  all  the  members  elected  to  each 
of  the  two  houses  voting  in  favor  thereof.  The  taxes 
herein  provided  for  shall  become  a  lien  on  the  first  Monday 
in  March  of  each  year  after  the  adoption  of  this  section 
and  shall  become  due  and  payable  on  the  first  Monday  in 
July  thereafter.  The  gross  receipts  and  gross  premiums 
herein  mentioned  shall  be  computed  for  the  year  ending 
the  thirty-first  day  of  December  prior  to  the  levy  of  such 
taxes  and  the  value  of  any  property  mentioned  herein  shall 
be  fix-^d  as  of  the  first  Monday  in  March.  Nothing  herein 
contained  shall  affect  any  tax  levied  or  assessed  prior  to 
the  adoption  of  this  section;  and  all  laws  in  relation  to 
such  taxes  in  force  at  the  time  of  the  adoption  of  this  sec- 
tion shall  remain  in  force  until  changed  by  the  legislature. 
Until  the  year  1918  the  state  shall  reimburse  any  and  all 
counties  which  sustain  loss  of  revenue  by  the  withdrawal 
of  railroad  property  from  county  taxation  for  the  net  loss 


I 


i 


545  REVENUE  AND  TAXATION.  Art.  XIII,  §  14 

in  county  revenue  occasioned  by  the  withdrawal  of  rail- 
road property  from  county  taxation.  The  legislature  shall 
provide  for  reimbursement  from  the  general  funds  of  any 
county  to  districts  therein  where  loss  is  occasioned  in  such 
districts  by  the  withdrawal  from  local  taxation  of  prop- 
erty taxed  for  state  purposes  only. 

Suits  to  recover  or  enjoin  tax. 

(g)  No  injunction  shall  ever  issue  in  any  suit,  action  or 
proceeding  in  any  court  against  this  state  or  against  any 
officer  thereof  to  prevent  or  enjoin  the  collection  of  any 
tax  levied  under  the  provisions  of  this  section;  but  after 
payment  action  may  be  maintained  to  recover  any  tax  ille- 
gally collected  in  such  manner  and  at  such  time  as  may 
now  or  hereafter  be  provided  by  law.  (New  section  added 
by  amendment  adopted  November  8,  1910.) 

TAXATION  FOR  STATE  PURPOSES.— Section  468  of  the  Civil 
Code,  defining  when  a  railroad  is  to  be  deemed  in  full  operation,  has 
no  application  to  the  determination  of  the  question  whether  or  not 
the  property  of  a  railroad  or  other  public  service  corporation  is  "op- 
erative" within  the  meaning  of  this  section  and  the  act  of  April  1, 
1911  (Stats.  1911,  p.  530),  providing  for  the  separation  of  state  from 
local  taxation  and  for  the  taxation  of  public  service  and  other  cor- 
porations. (San  Diego  etc.  Ey.  Co.  v.  State  Board,  165  Cal.  560,  132 
Pac.   1044.) 

Where  a  railroad  operates  part  of  its  line  and  runs  a  mixed  train 
for  freight  and  passengers  daily  except  Sunday,  such  part  is  "opera- 
tive property"  within  the  meaning  of  the  act  of  April  1,  1911,  provid- 
ing for  the  separation  of  state  from  local  taxation,  and  for  the 
taxation  of  public  service  and  other  corporations,  and  within  the 
meaning  of  this  section,  and  is  taxable  only  for  state  purposes.  (San 
Diego  etc.  Ry.  Co.  v.  State  Board,  165  Cal.  560,  132  Pac.  1044.) 

The  amendment  of  1910  exempts  a  telephone  company  from  liabil- 
ity for  a  license  imposed  by  a  pre-existing  municipal  ordinance,  for 
purposes  of  revenue  only,  upon  persons  or  corporations  supplying  tele- 
phone service  to  the  inhabitants  of  the  municipality,  and  it  exempts 
them  from  the  payment  of  such  license  for  the  first  two  quarters  of 
1911.  (San  Francisco  v.  Pacific  Tel.  &  Tel.  Co.,  166  Cal.  244,  135  Pac 
971.) 

Under  this  section  steamboats  belonging  to  and  operated  by  a  rail- 
road company  on  a  lake  at  which  its  railroad  line  terminates,  for  the 
purpose  of  carrying  goods  and  passengers  between  many  different 
points  thereon  both  within  and  without  the  state,  are  not  taxable 
under  this  section  if  such  steamboats  are  not  used  exclusively  in  the 
operation  of  its  railroad  business.  (Lake  Tahoe  Ry.  etc.  Co.  v. 
Roberts,  168  Cal.  551,  143  Pac.  786.) 
Constitution — 35 


Art.  XIII,  §  14         CONSTITUTION  OF  1879.  546 

The  taxes  imposed  on  public  service  companies  by  tbis  section  are 
in  lieu  of  all  other  taxes  and  licenses,  state,  county  and  municipal 
upon  the  property  enumerated  in  this  section.  (Pacific  Gas  &  El. 
Co.  V.  Eoberts,  168  Cal.  420,  143  Pac.  700.) 

This  section  exempts  a  public  service  corporation  transmitting  and 
selling  gas  and  electricity  in  the  state  from  the  payment  of  the 
license  tax  imposed  by  the  Motor  Vehicle  Act  on  motor  vehicles 
owned  by  it  and  used  exclusively  in  its  business  in  the  state. 
(Pacific  Gas  &  El.  Co.  v.  Eoberts,  168  Cal.  420,  143  Pac.  700.) 

A  revenue  tax,  imposed  by  a  municipal  ordinance,  upon  agents  of 
insurance  companies  for  the  right  to  do  business  is  in  violation  of 
this  section.     (Hughes  v,  Los  Angeles,  168  Cal.  764,  145  Pac.  94.) 

The  amendment  of  1910  taxing  the  franchises  of  insurance  com- 
panies for  state  purposes  exempted  these  corporations  from  the  payment 
of  the  corporation  license  tax  of  March  20,  1905.  (Hartford  Fire  Ins. 
Co.  V.  Jordan,  168  Cal.  270,  142  Pac.  839.) 

This  section  renders  invalid  an  excise  or  occupation  tax  attempted 
to  be  imposed  by  a  municipal  ordinance  upon  the  right  of  banks,  sub- 
ject to  the  tax  imposed  by  this  section,  to  conduct  their  business. 
(Southern  Trust  Co.  v.  Los  Angeles,  168  Cal.  762,  145  Pac.  94.) 

This  subdivision  does  not  supersede  or  override  sections  22  and  34 
of  article  IV  of  the  Constitution,  in  so  far  as  they  involve  limitations 
upon  the  appropriations  of  money  to  satisfy  final  judgments  against 
the  state  treasurer  for  state  taxes  illegally  collected  by  him.  (West- 
inghouse  Electric  Co.  v.  Chambers,  169  Cal.  131,  145  Pac.  1025.) 

The  action  authorized  by  this  subdivision  would  be  complete  when 
final  judgment  was  obtained,  and  nothing  in  it  provides  for  the  ac- 
tual payment  of  the  money  sued  for,  or  the  satisfaction  of  the  judg- 
ment obtained  in  the  action.  (Westinghouse  Electric  Co.  v.  Chambers, 
109  Cal.  131,  145  Pac.  1025.) 

This  section  does  not  adopt  section  3669  of  the  Political  Code,  and 
declare  that  final  judgments  against  the  state  treasurer  for  state 
taxes  illegally  collected  by  him  shall  be  paid  out  of  the  treasury  on 
warrant  drawn  thereon  by  the  controller.  (Westinghouse  Electric 
Co.  v.  Chambers,  169  Cal.  131,  145  Pac.  1025.) 

An  assessment  on  deposits  in  a  bank,  made  pursuant  to  order  of 
court  in  pending  suits,  is  not  an  assessment  against  the  bank  or  its 
shares  or  other  property,  within  the  meaning  of  this  section,  but  is 
an  assessment  against  funds  in  the  hands  of  the  bank  acting  as  re- 
ceiver. (Spring  Valley  Water  Co,  v.  City  and  County  of  San  Fran- 
cisco, 225  Fed.   728.) 

HISTORY  OF  SECTION.— This  section  was  the  result  of  a  move- 
ment inaugurated  in  1905  to  separate  the  system  of  state  and  local 
taxation.  To  that  end  an  act  was  passed  on  the  twentieth  day  of 
March,  1905,  authorizing  the  appointment  of  a  commission  on  revenue 
and  taxation.  (Stats.  1905,  p.  390.)  Pursuant  to  that  act  the  com- 
mission was  appointed,  consisting  of  Governor  George  C.  Pardee,  Pro- 
fessor Carl  C.  Plehn,  expert  on  taxation  and  public  finance.  Senators 
J.  B.  Curtin  and  M.  L.  Ward,  and  Assemblymen  H.  S.  G.  McCartney 
and  Edward  F.  Treadwell.  That  commission  made  an  elaborate 
report   to   the   governor   in   1906   and   recommended    a    constitutional 


I 


547  REVENUE  AND  TAXATION.  Art.  XIII,  §  14 

amendment  for  the  purpose  of  carrying  out  its  recommendations, 
which  was  adopted  as  Senate  Constitutional  Amendment  No.  1,  on 
March  9,  1907  (Stats.  1907,  p.  13.53).  This  amendment  was  voted 
upon  at  the  election  held  in  November,  1908,  and  failed  of  adoption, 
and  tliereupon  the  commission  recommended  a  new  amendment  cor- 
recting the  defects  in  the  prior  amendment,  which  was  again  adopted 
as  Senate  Constitutional  Amendment  No.  1,  on  March  19,  1909  (Stats. 
1909,  p.  1332).  This  amendment  consisted  of  this  new  section  14, 
and  the  amendment  to  section  10  of  this  article,  and  the  repeal  of  sec- 
tion 10  of  article  XI.  This  amendment  was  submitted  to  a  vote  of 
the  people  and  adopted  at  the  general  election  in  November,  1910. 

The  general  purpose  and  object  of  the  amendment  is  fully  discussed 
in  the  two  reports  of  the  commission  above  referred  to.  In  the  first 
report  the  question  of  the  constitutionality  of  a  gross  earnings  tax  is 
discussed  in  some  detail,  and  as  that  discussion  is  applicable  to  the 
validity  of  this  section,  it  is  here  inserted: 

"Is  a  gross  earnings  tax  constitutional? 

"The  opinion  is  often  expressed  in  tax  commission  reports  and  else- 
where that  a  tax  on  the  gross  earnings  of  railroads,  in  so  far  as  those 
earnings  are  derived  from  interstate  commerce,  is  of  doubtful  valid- 
it}'  under  provisions  of  the  Federal  Constitution.  This  view  is  very 
forcibly  expressed  by  the  Ontario  Commission  on  Railway  Taxation, 
1905,  which,  however,  brought  in  a  very  strong  report  in  favor  of  the 
gross  earnings  tax  on  broad  general  grounds.  Their  recommenda- 
tion applied,  of  course,  to  Canada,  where  the  constitutional  difficul- 
ties referred  to  could  not  apply.  The  Ontario  Commission,  after 
saying  that  'The  earning  power  is  the  only  reliable  and  satisfactory 
basis  of  taxation,'  alleged: 

"  'In  the  United  States,  however,  owing  to  the  wording  and  inter- 
pretation of  the  Constitution,  it  is  held  by  the  courts  that  taxation 
by  any  State  of  the  earnings  of  a  railroad  derived  from  interstate 
traffic  is  illegal.  Consequentlj',  even  where  the  earnings  of  a  railroad 
are  made  the  basis  of  taxation,  the  tax  laws  are  careful  to  state  that 
the  tax  is  a  license  tax  or  a  franchise  tax,  merely  measured  by  gross 
earnings;  and  it  is  often  further  guarded  by  some  such  qualifying 
clause  as,  "derived  entirely  from  traffic  within  the  State."  In  sev- 
eral states  where  the  gross  earnings  tax  is  accepted  by  both  the 
people  and  the  railways,  it  is  thought  that  the  law  is  not  really  con- 
stitutional, but,  as  neither  party  cares  to  bring  the  matter  to  a  test,  it 
is  permitted  to  stand.  In  Wisconsin,  the  gross  earnings  tax,  lately 
abolished,  was  declared  by  several  judges  to  be  unconstitutional,  bn( 
they  refused  to  give  judgments  adverse  to  the  state  on  account  of 
the  confusion  which  would  be  introduced  into  the  State  revenue. 

"  'When  such  states  as  Michigan  and  Wisconsin,  which  had  previ- 
ously taxed  the  railroads  on  the  gross  earnings  basis,  reached  the  con- 
viction that  the  railroads  were  not  paying  as  much  as  they  might  be 
made  to  pay,  we  find  that,  instead  of  simply  raising  the  rate  of  the 
existing  tax  from,  say  four,  to  say  five  or  six  per  cent,  they  found  it 
expedient  to  change  the  basis  of  taxation.  This  was  obviously  done 
because  they  knew  that  the  raising  of  the  rate  would  meet  with  the 
opposition  of  the  railroads  and  would  probably  result  in  the  tax  law 


Art.  XIII,  §  14         CONSTITUTION  OF  1879.  548 

being  declared  unconstitutional,  thereby  paralyzing  a  large  section 
of  the  revenue  of  the  state  until  a  new  method  of  taxation  should  be 
adopted.  Yet,  as  already  indicated,  and  as  an  examination  of  its 
operation  will  show,  the  so-called  ad  valorem  system  of  these  and 
other  states  is  really  a  roundabout  method  of  getting  at  earnings  once 
more  on  a  higher  rate  of  taxation.'  (Report  of  Ontario  Commission 
on  Railway  Taxation,  1905,  pp.  16-17.) 

"This  view,  as  forcibly  expressed  by  the  Ontario  Commission,  has 
been  sedulously  spread  by  certain  railroad  attorneys  and  is  somewhat 
extensively  held  in  the  United  States,  but  it  does  not  accord  with  the 
decisions  of  the  Supreme  Court.  The  following  analysis  of  the  long 
series  of  interesting  decisions  upon  this  point  will  show  at  once  where 
the  erroneous  opinion  arose  and  what  the  Supreme  Court  now  holds: 

"The  constitutionality  of  a  tax  on  the  gross  receipts  of  corporations 
engaged  in  interstate  commerce. 

"In  writing  the  following  synopsis  of  the  decisions  of  the  Supreme 
Court  as  to  the  power  of  the  states  to  tax  interstate  carriers  we  have 
worked  directly  from  the  United  States  Reports.  Much  assistance 
was,  however,  found  in  the  admirable  treatise  by  Frederick  N".  Jud- 
son,  of  the  St.  Louis  Bar,  on  The  Power  of  Taxation,  State  and  Fed- 
eral, in  the  United  States:  St.  Louis,  1903,  especially  Chapters  III, 
VII  and  VIII. 

"Mr.  Treadwell  went  over  the  cases  first  and  formulated  the  conclu- 
sions reached. 

"Of  the  several  provisions  of  the  Federal  Constitution  intended 
jointlv  to  safeguard  'the  freest  interchange  of  commodities  among 
the  people  of  the  different  states'  (Justice  Miller  in  Cook  v.  Pennsyl- 
vania, 97  U.  S.  566,  574,  24  L.  Ed.  1015,  1018),  the  one  chiefly  relied 
upon  in  connection  with  the  taxation  of  carriers  engaged  in  interstate 
commerce  is  paragraph  3,  of  Section  8,  of  Article  I,  which  confers 
upon  Congress  the  power:  'To  regulate  commerce  with  foreign 
nations,  and  among  the  several  states,  and  with  the  Indian  tribes.' 

"The  dictum  of  Chief  Justice  Marshall  in  McCulloch  v.  Maryland, 
'that  the  power  to  tax  involves  the  power  to  destroy,  etc.,'  was  deliv- 
ered solely  with  reference  to  the  taxation  of  the  'instruments  em- 
ployed by  the  Government  in  the  execution  of  its  powers,'  and  no 
attempts  to  apply  it  as  a  prohibition  of  state  taxation  of  interstate 
carriers,  even  when  they  are  incorporated  by  the  United  States,  have 
been  successful.  (Thomson  v.  Pacific  Railroad,  9  Wall.  579,  19  L.  Ed. 
792;   Union  Pac.  R.  R.   Co.  v.  Peniston,  18   Wall.  5,   21  L.  Ed.   787.) 

"The  difficulty  of  drawing  a  sharp  line  between  the  Federal  powers 
and  the  State  powers  in  the  matter  of  the  taxation  and  regulation  of 
those  great  agencies  of  interstate  commerce,  like  the  railroads  and 
the  telegraph,  which  extend  from  one  end  of  the  country  to  the  other, 
has  troubled  the  courts  since  1872.  It  is  only  recently  that  the  prob- 
lem has  been  definitely  solved. 

"While  the  greater  part  of  each  of  the  two  fields,  in  which  each  of 
the  two  great  divisions  of  our  Government  may  respectively  exer- 
cise its  powers,  is  clear  enough,  yet  the  boundary  of  one  seems  to 
merge  almost  imperceptibly  into  that  of  the  other  at  places.  This 
has   resulted   in   much   litigation,   and   the  decisions   of   the   Supreme 


549  REVENUE  AND  TAXATION.  Art.  XIII,  §  14 

Court  on  some  of  the  most  vital  points  have  occasionally  seemed 
contradictory.  In  not  a  few  instances  the  Court  has  apparently 
reversed  itself. 

"However,  the  following  points  seem  now  to  have  been  conclusively 
jcettled: 

"A.     As  to  the  taxation  of  interstate  carriers  on  an  ad  valorem  basis: 

"1.  A  State  may  tax  the  property,  within  its  bounds,  of  railroad 
companies  and  other  persons  or  corporations  engaged  in  interstate 
commerce.  (Union  Pac.  R.  E.  Co.  v.  Peuiston,  18  Wall.  5,  21  L.  Ed. 
787,  and  later  cases  based  thereon.) 

"2.  It  may  tax  both  the  tangible  and  the  intangible  property  of 
the  carriers,  provided  only,  that  it  may  not  tax  a  Federal  franchise. 
(Central  Pacific  R.  R.  Co.  v.  People  of  California,  162  U.  S.  91,  40 
L.  Ed.  903,  16  Sup.  Ct.  Rep.  766.) 

"3.  A  State  may  value  that  property  by  the  'unit  rule,'  i.  e.,  make 
a  valuation  of  the  entire  property  of  the  'system'  of  a  given  corpora- 
tion engaged  in  interstate  business,  and  tax  that  proportion  of  tho 
entire  property  which  the  mileage  in  the  State  bears  to  the  total 
mileage  operated.  Or,  what  is  the  same  thing,  may  make  the  appor- 
tionment on  the  basis  of  business  done.  (State  Railroad  Tax  Cases, 
92  U.  S.  575,  23  L.  Ed.  663;  Western  Union  Telegraph  Co.  v.  Tag- 
gart,  163  U.  S.  1,  41  L.  Ed.  49,  16  Sup.  Ct.  Rep.  1054;  Adams  Express 
Co.  v.  Ohio,  165  U.  S.  194.) 

"4.  It  may  arrive  at  a  valuation  by  the  following  methods: 

"(a)  By  adding  the  market,  or  fair  cash,  value  of  the  shares  of 
capital  stock  and  the  market,  or  par,  value  of  the  various  kinds  of 
funded  indebtedness. 

"Justice  Miller,  in  rendering  an  oft-quoted  decision  on  this  point, 
said:  'It  is  therefore  obvious  that,  when  you  have  ascertained  the 
current  cash  value  of  the  whole  funded  debt,  and  the  current  cash 
value  of  the  entire  number  of  shares,  you  have,  by  the  action  of  those 
who  above  all  others  can  best  estimate  it,  ascertained  the  true  value 
of  the  road,  all  its  property,  its  capital  stock,  and  its  franchises;  for 
these  are  all  represented  by  the  value  of  its  bonded  debt  and  of  the 
shares  of  its  capital  stock.' 

"He  added  that  this  would  be  perhaps  the  fairest  basis  of  taxation 
for  the  State  at  large,  if  all  railroads  were  solvent  and  paid  the  inter- 
est promptly  on  their  funded  debt;  but  that  this  was  not  the  case. 
The  system  adopted  by  the  statute  of  Illinois  and  the  rule  of  the 
board  preserved  the  principle  of  taxing  all  the  tangible  property  at 
its  value,  and  then  taxing  the  capital  stock  and  franchise  at  their 
value,  if  there  was  any,  after  deducting  the  value  of  the  tangible 
property.     (State  Railroad  Tax  Cases,  92  U.  S.  575,  23  L.  Ed.  663.) 

"(b)  By  considering  one  or  more  of  several  elements,  or  evidences 
of  value,  as:  the  cost  of  construction  or  equipment,  the  market  value 
of  the  outstanding  securities,  the  gross  earnings  and  the  net  earnings, 
and  all  other  matters  appertaining  thereto.  (Pittsburgh  etc.  Ry. 
Co.  v.  Backus  (Indiana  Railroad  Cases),  154  U.  S.  421  and  439,  38 
L.  Ed.  1031,  14  Sup.  Ct.  Rep.  1114.) 

"5.  The  court  has  recognized  the  fact  that  the  value  of  property 
of  this  class  depends  largely  on  the  earnings.     In  some  of  the  deci- 


Art.  Xill,  §  14         CONSTITUTION  OF  1879.  550 

sions   already   referred   to   this   is   made   clear.     Thus  in   the   Indiana 
Railroad  Tax  Cases  (p.  445)  it  was  said: 

"  'The  rule  of  property  taxation  is  that  the  value  of  the  property 
is  the  basis  of  taxation.  It  does  not  mean  a  tax  upon  the  earnings 
which  the  property  ma"kes,  nor  for  the  privilege  of  using  the  prop- 
erty, but  rests  solely  upon  the  value.  But  the  value  of  property 
results  from  the  use  to  which  it  is  put  and  A'aries  with  the  profit- 
ableness of  that  use,  present  and  prospective,  actual  and  anticipated. 
There  is  no  pecuniary  value  outside  of  that  which  results  from  such 
use.  The  amount  and  profitable  character  of  such  use  determines 
the  value,  and  if  property  is  taxed  at  its  actual  cash  value,  it  is  taxed 
upon  something  which  is  created  by  the  uses  to  which,  it  is  put.  In 
the  nature  of  things  it  is  practically  impossible — at  least  in  respect 
to  railroad  property — to  divide  its  value,  and  determine  how  much 
is  caused  by  one  use  to  which  it  is  put  and  how  much  by  another. 
Take  the  case  before  us;  it  is  impossible  to  disintegrate  the  value  of 
that  portion  of  the  road  within  Indiana  and  determine  how  much  of 
that  value  springs  from  its  use  in  doing  interstate  business,  and  how 
much  from  its  use  in  doing  business  wholly  within  the  State.  An  at- 
tempt to  do  so  would  be  entering  upon  a  mere  field  of  uncertainty 
and  speculation.  And  because  of  this  fact  it  is  something  which,  an 
assessing  board  is  not  required  to  attempt.' 

"B.     As  to  the  taxation  of  carriers  or  of  interstate  business  by  meth- 
ods other  than  the  property  or  ad  valorem  tax: 

"1.  A  State  may  not  levy  a  license  tax  as  a  prerequisite  in  carrying 
on  interstate  business. 

"In  Osborne  v.  Mobile,  16  Wall.  (U.  S.)  479,  21  L,  Ed.  470,  decided  ' 
in  1872,  the  Supreme  Court  decided  that  this  could  be  done.     But  fif- 
teen years  later  that  case  was  overruled  in  Leloup  v.  Port  of  Mobile, 
127  U.   S.   640,  32  L.  Ed.  311,  8  Sup.   Ct.   Rep.   1380.     The  trenchant 
part  of  this  decision  reads: 

"  'A  great  number  and  variety  of  cases  involving  the  commercial 
power  of  Congress  have  been  brought  to  the  attention  of  this  court 
during  the  past  fifteen  years  which  have  frequently  made  it  necessary 
to  re-examine  the  whole  subject  with  care;  and  the  result  has  some- 
times been  that  in  order  to  give  full  and  fair  effect  to  the  different 
clauses  of  the  Constitution,  the  court  has  felt  constrained  to  refer  to 
the  fundamental  principles  stated  and  illustrated  with  so  much  clear- 
ness and  force  by  Chief  Justice  Marshall  and  other  members  of  the 
court  in  former  times,  and  to  modify  in  some  degree  certain  dicta 
and  decisions  which  have  occasionally  been  made  in  the  intervening 
period.  This  is  always  done,  however,  with  great  caution,  and  an 
anxious  desire  to  place  the  final  conclusion  reached  upon  the  fairest 
and  most  just  constructions  of  the  Constitution  in  all  its  parts.' 

"The  conclusion  was,  therefore  (1.  c,  page  648),  'that  no  state  has 
the  right  to  lay  a  tax  on  interstate  commerce  in  any  form,  whether 
by  way  of  duties  laid  on  the  transportation  of  the  subjects  of  that 
commerce,  or  on  the  receipts  derived  from  that  transportation,  or  on 
\he  occupation  or  business  of  carrying  it  on,  and  the  reason  is  that 
such  taxation  is  a  burden  on  that  commerce  and  amounts  to  a  regu- 
lation  of  it,  which  belongs  solely   to  Congress.'     (See,  also,  Webster 


551  REVENUE   AND  TAXATION.  Art.  XIII,  §  IJ: 

V.  Bell,  68  Fed.  183,  15  C.  C.  A.  360;  McCall  v.  California,  136  U.  S. 
104,  34  L.  Ed.  392,  10  Sup.  Ct.  Eep.  881;  Norfolk  and  Webster  E.  Co. 
V.  Pennsylvania,  1(36  U.  S.  114,  34  L.  Ed.  394,  10  Sup.  Ct.  Eep.  9;58; 
Crutcher  v.  KentiK'ky,  141  U.  S.  47,  35  L.  Ed.  649,  11  Sup.  Ct.  Eep. 
SSI.) 

"2.  A  State  may  levy  a  license  tax  on  local  or  interstate  business 
performed  by  interstate  carriers.  (Osborne  v.  Florida,  164  U.  S.  650, 
41  L.  Ed.  586,  17  Sup.  Ct.  Eep.  214;  Postal  Telegraph  Cable  Co.  v, 
Adams,  155  U.  S.  688,  39  L.  Ed.  311,  15  Sup.  Ct.  Eep.  268.) 

"3.  A  State  may  not  tax  freight,  in  interstate  commerce,  nor  inter- 
state telegraph  messages.  (State  Freight  Tax  Case,  15  Wall.  232,  21 
L.  Ed.  146;  Western  Union  Telegraph  Co.  v.  Texas,  105  U.  S.  460, 
26  L.  Ed.  1067.) 

"4.  A  State  may  levy  a  tax  in  proportion  to  the  gross  receipts  from 
interstate  commerce  under  certain  conditions  and  in  certain  forms. 
But  may  not  tax  the  receipts  as  such. 

"The  earliest  case  involving  this  point  seems  to  be  one  decided  in 
1872,  at  about  the  same  time  that  the  State  Freight  Tax  case,  above 
referred  to,  was  decided.  This  is  known  as  'The  State  Tax  on  Eail- 
way  Gross  Eeceipts,'  15  Wall.  284,  21  L.  Ed.  164. 

"The  State  of  Pennsylvania  levied  a  three-fourths  of  one  per  cent 
tax  on  the  gross  earnings  of  every  railroad  incorporated  under  its 
laws,  and  the  tax  was  held  valid,  even  when  it  covered  the  earnings 
of  a  State  railroad  on  coal  carried  out  of  the  State. 

"This  case  was  distinguished  from  the  State  Freight  Tax  case  on 
the  ground  that  not  everything  which  affects  commerce  amounts  to  a 
regulation  of  it  within  the  meaning  of  the  Constitution. 

"The  court  said,  in  words  that  often  reappear  in  the  later  decisions 
on  the  same  point,  after  showing  tliat  the  states  have  authorit}'  to 
tax  the  property,  real  and  personal,  of  all  corporations  whether 
engaged  in  interstate  commerce  or  no't: 

"  'We  think  also  that  such  tax  may  be  laid  upon  a  valuation,  or 
may  be  an  excise,  and  that  in  exacting  an  excise  tax  from  their  cor- 
porations, the  states  are  not  obliged  to  impose  a  fixed  sum  upon  the 
franchises  or  upon  the  value  of  them,  but  they  may  demand  a  gradu- 
ated contribution,  proportioned  either  to  the  value  of  the  privileges 
granted,  or  to  the  extent  of  their  exercise,  or  to  the  results  of  such 
exercise.  There  certainly  is  a  line  which  separates  that  power  of 
the  Federal  Government  to  regulate  commerce  among  the  states, 
which  is  exclusive,  from  the  authority  of  the  states  to  tax  a  person's 
property,  business,  or  occupation,  within  their  limits.  The  line  is 
sometimes  difficult  to  define  with  distinctness.  It  is  so  in  the  present 
case;  but  we  think  it  may  safely  be  laid  down  that  the  gross  receipts 
of  railroad  or  canal  companies,  after  they  have  reached  the  treasury 
of  the  carriers,  though  they  may  have  been  derived  in  part  from 
transportation  of  freight  between  states,  have  become  subject  to 
legitimate   taxation.' 

"In  commenting  on  these  decisions,  Mr.  Judson  says: 

"  'It  seems  to  have  been  conceded  that  a  State  can  levy  a  tax  upon 
net  earnings,  and  the  court  said  that  it  is  difficult  to  state  any  \yell: 
founded  distinction   between  a  State  tax  upon  net  earnings  and  one 


Art.  XIII,  §  14  CONSTITUTION  OF  1879.  552 

upon  gross  earnings,  that  net  earnings  are  a  part  of  the  gross  receipts, 
and  that  the  gross  receipts  are  a  measure  of  approximate  value. 

"  'Neither  of  these  cases  has  been  overruled;  but  the  authority  of 
the  decision  in  the  case  of  the  State  Tax  on  Gross  Receipts  was  for 
a  time  seriously  impaired  by  decisions  of  the  court  apparently  incon- 
sistent with  the  broad  statement  therein  of  the  right  to  tax  gross 
receipts,  on  the  ground  that  they  have  passed  into  the  treasury  of 
the  company  and  lost  their  distinctive  character  as  freight.'  (S;^e 
Philadelphia  &  S.  M.  Steamship  Co.  v.  Pennsylvania,  122  U.  S.  32C, 
30  L.  Ed.  1200,  7  Sup.  Ct.  Rep.  1118;  Fargo  v.  Stevens,  121  U.  S.  230, 
30  L.  Ed.  888,  7  Sup.  Ct.  Rep.  857.) 

"  'It  will  be  noticed  that  the  mileage  rule  of  apportionment  of  in- 
terstate properties  was  not  suggested  or  considered  in  the  case  of  the 
State  Tax  on  Gross  Receipts.  The  case  presented  was  that  of  a  rail- 
road whose  line  was  entirely  within  the  State,  but  which  did  an  in- 
terstate business  through  its  connections  with  other  lines  leading  out 
of  the  State.' 

"We  come  now  to  a  series  of  cases  in  which  a  State  tax  on  gross 
receipts  from  interstate  trade  has  been  held  invalid.  The  first  is 
Fargo  v.  Stevens,  121  U.  S.  230,  30  L.  Ed.  888,  7  Sup.  Ct.  Rep.  8o7. 
The  Merchants'  Despatch  Transportation  Company,  a  New  York  cor- 
poration, owned  certain  cars  which  it  leased  to  the  railroad  companies 
which  operated  them.  The  State  of  Michigan  assessed  a  tax  on  the 
gross  receipts  of  that  company  in  the  State  measured  by  the  unit  rule 
and  based  on  receipts  from  the  transportation  of  freight  from  points 
without  to  points  within  the  State  and  from  points  within  to  points 
without,  but  did  not  tax  the  receipts  from  business  passing  entirely 
through  the  State.  This  case  was  distinguished  from  the  Railway 
Gross  Receipts  case  (which  it  did  not  distinctly  overrule)  on  the 
grounds  (1)  that  the  Merchants'  Despatch  was  not  a  Michigan  cor- 
poration, and  (2)  that  in  the  Pennsylvania  case  the  money  was  in 
the  treasury  of  the  company  in  that  State,  while  in  the  Michigan  case 
the  money  for  the  freight  was  probably  never  in  that  State  and  hence 
not  property  subject  to  taxation. 

"In  the  next  term  of  the  court  the  theory  that  gross  receipts  could 
not  be  taxed  was  more  fully  developed  in  the  case  of  the  Philadel- 
phia &  S.  M.  Steamship  Co.  v.  Pennsylvania,  122  U.  S.  326,  30  L.  Ed. 
1200,  7  Sup.  Ct.  Rep.  1118.  In  this  case  Pennsylvania  had  attempted 
to  impose  a  tax  on  the  gross  receipts  of  railroads,  canal,  steamboat, 
and  other  transportation  companies.  The  steamship  company  in  ques- 
tion was  a  Pennsylvania  corporation  running  steamers  between  Phila- 
delphia and  Savannah  and  from  New  Orleans  to  foreign  ports.  The 
court  held  that  interstate  commerce  carried  on  by  ships  at  sea  is 
national  in  character  and  must  be  covered  by  one  general  rule.  The 
court  said: 

"  'If,  then,  the  commerce  carried  on  by  the  plaintiff  in  error  in  this 
case  could  not  be  constitutionally  taxed  by  the  State,  could  the  fares 
and  freights  received  for  transportation  in  carrying  on  that  commerce 
be  constitutionally  taxed?  If  the  State  cannot  tax  the  transporta- 
tion, may  it,  nevertheless,  tax  the  fares  and  freights  received  there- 
for?    Where  is  the  difference?     Looking  at  the  substance  of  things, 


553  REVENUE  AND  TAXATION.  Art.  XIII,  §  14 

and  not  at  the  mere  forms,  it  is  very  difficult  to  see  any  difference. 
The  one  thing  seems  to  be  tantamount  to  the  other.  It  would  seem 
to  be  rather  metaphysics  than  plain  logic  for  the  State  officials  to  say 
to  the  company:  "We  will  not  tax  you  for  the  transportation  you  per- 
torm,  but  we  will  tax  you  for  what  you  get  for  performing  it."  Such 
a  position  can  hardly  be  said  to  be  based  on  a  sound  method  of 
reasoning. 

"  'Xo  doubt  a  ship-owner,  like  any  other  citizen,  may  be  personally 
taxed  for  the  amount  of  his  property  or  estate,  without  regard  to  the 
source  from  which  it  was  derived,  whether  from  commerce,  or  bank- 
ing, or  any  other  employment.  But  that  is  an  entirely  different  thing 
from  laying  a  special  tax  upon  his  receipts  in  a  particular  employ- 
ment. If  such  a  tax  is  laid,  and  the  receipts  taxed  are  those  derived 
from  transporting  goods  and  passengers  in  the  way  of  interstate  or 
foreign  commerce,  no  matter  when  the  tax  is  exacted,  whether  at  the 
time  of  realizing  the  receipts,  or  at  the  end  of  every  six  months  or 
a  year,  it  is  an  exaction  aimed  at  the  commerce  itself,  and  is  a  bur- 
den upon  it,  and  seriously  affects  it.  A  review  of  the  question  con- 
vinces us  that  the  first  ground  on  which  the  decision  in  State  Tax 
on  Railway  Gross  Receipts  was  placed  is  not  tenable;  that  it  is  not 
supported  by  anything  decided  in  Brown  v.  Maryland;  but  on  the  con- 
trary, that  the  reasoning  in  that  case  is  decidedly  against  it.' 

"On  the  basis  of  these  decisions  the  State  courts  quite  generally 
held  that  gross  receipts  of  carriers  in  interstate  commerce  could  not 
be  taxed. 

"But  there  is  another  line  of  decisions  which  seem  to  modify  the 
effect  of  the  line  running  from  Fargo  v.  Michigan  without  expressly 
overruling  them.  These  connect  with  the  cases  sanctioning  the  taxa- 
tion of  property.  But  so  far  as  they  affect  the  question  of  the  actual 
measurement  of  a  State  tax  by  the  gross  receipts,  including  an  equita- 
ble portion  of  the  receipts  from  interstate  commerce,  they  are  more 
recent  than  the  other  line  and  have  ended  in  such  emphatic  reasser- 
tion  that  they  seem  absolutely  conclusive. 

"In  1881  Maine  inaugurated  a  tax  on  each  railroad  in  the  State  en- 
titled 'an  annual  excise  tax,  for  the  privilege  of  exercising  its  fran- 
chises, and  the  franchises  of  its  leased  roads  in  the  State.'  This  tax 
'is  in  place  of  all  taxes  upon  such  railroad,  its  property  and  stock.' 
The  amount  of  this  tax  was  calculated  on  the  basis  of  the  average 
gross  receipts  per  mile  of  road.  It  is  important  to  note  that  the  tax 
was  payable  in  April  and  was  computed  on  the  basis  of  gross  receipts 
for  the  year  ending  June  30  in  the  preceding  year.  The  following 
provisions  covered  interstate  railroads: 

"  'When  a  railroad  lies  partly  within  and  partly  without  the  State, 
or  is  operated  as  a  part  of  a  line  or  system  extending  beyond  the 
State,  the  tax  shall  be  equal  to  the  same  proportion  of  the  gross  re- 
ceipts in  the  State,  as  herein  provided,  and  its  amount  shall  be  deter- 
mined as  follows:  the  gross  transportation  receipts  of  such  railroad, 
line  or  system,  as  the  case  may  be,  over  its  whole  extent,  within  and 
without  the  State,  shall  be  divided  by  the  total  number  of  miles  oper- 
ated to  obtain  the  average  gross  receipts  per  mile,  and  the  gross 
receipts  in  the  State  shall  be  taken  to  be  the  average  gross  receipts 


Art.  XIII,  §  14         CONSTITUTION  OF  1879.  554 

per    mile,    multiplied   by   the    number    of    miles    operated    within    the 
State.' 

"The  Grand  Trunk  Railroad  Company,  a  Canadian  corporation,  oper- 
ated a  road  in  Maine,  which  it  leased,  and  became  subject  to  this  tax. 
The  railroad  opposed  the  tax  on  the  ground  that  the  case  of  the  State 
tax  on  gross  receipts  had  been  overruled  in  Fargo  v.  Michigan,  and 
this  contention  was  sustained  by  the  United  States  court.  On  appeal, 
to  the  Supreme  Court  the  decision  of  the  lower  court  was  reversed 
and  the  tax  was  held  to  be  valid.     The  court  said: 

"  'The  tax,  for  the  collection  of  which  this  action  is  brought,  is  an 
excise  tax  upon  the  defendant  corporation  for  the  privilege  of  exer- 
cising its  franchises  within  the  State  of  Maine.  It  is  so  declared  iu 
the  statute  which  imposes  it;  and  that  a  tax  of  this  character  is 
within  the  power  of  the  State  to  levy  there  can  be  no  question.  The 
designation  does  not  always  indicate  merely  an  inland  imposition  o  • 
duty  on  the  consumption  of  commodities,  but  often  denotes  an  impost 
for  a  license  to  pursue  certain  callings,  or  to  deal  in  special  commodi- 
ties, or  to  exercise  particular  franchises.  It  is  used  more  frequently, 
in  this  country,  in  the  latter  sense  than  in  any  other.  The  privilege 
of  exercising  the  franchises  of  a  corporation  within  a  State  is  gener- 
ally one  of  value,  and  often  of  great  value,  and  the  subject  of  earn- 
est contention.  It  is  natural,  therefore,  that  the  corporation  should 
be  made  to  bear  some  proportion  of  the  burdens  of  government.  As 
the  granting  of  the  privilege  rests  entirely  in  the  discretion  of  the 
State,  whether  the  corporation  be  of  domestic  or  foreign  origin,  it 
may  be  conferred  upon  such  conditions,  pecuniary  or  otherwise,  as 
the  State  in  its  judgment  may  deem  most  conducive  to  its  interests  or 
policy.  It  may  require  the  payment  into  its  treasury,  each  year,  of 
a  specific  sum,  or  may  apportion  the  amount  exacted  according  to  the 
value  of  the  business  permitted,  as  disclosed  by  its  gains  or  receipts 
of  the  present  or  past  years.  The  character  of  the  tax,  or  its  valid- 
ity is  not  determined  by  the  mode  adopted  in  fixing  its  amount  for 
any  specific  period  or  the  times  of  its  payment.  The  whole  field  of 
inquiry  into  the  extent  of  revenue  from  sources  at  the  command  of 
the  corporation  is  open  to  the  consideration  of  the  State  in  determin- 
ing what  may  be  justly  exacted  for  the  privilege.  The  rule  of  appor 
tioning  the  charge  to  the  receipts  of  the  business  would  seem  to  be 
eminently  reasonable,  and  likely  to  produce  the  most  satisfactory 
results,  both  to  the  State  and  the  corporation  taxed, 

"  'The  court  below  held  that  the  imposition  of  the  taxes  was  a  regu- 
lation of  commerce,  interstate  and  foreign,  and  therefore  in  conflict 
with  the  exclusive  power  of  Congress  in  that  respect;  and  on  that 
ground  alone  it  ordered  judgment  for  the  defendant.  This  ruling  was 
founded  upon  the  assumption  that  a  reference  by  the  statute  to  the 
transportation  receipts  and  to  a  certain  percentage  of  the  same  in 
determining  the  amount  of  the  excise  tax,  was  in  effect  the  imposi- 
tion of  the  tax  upon  such  receipts,  and  therefore  an  interference  with 
interstate  and  foreign  commerce.  But  a  resort  to  those  receipts  was 
simply  to  ascertain  the  value  of  the  business  done  by  the  corporation, 
and  thus  obtain  a  guide  to  a  reasonable  conclusion  as  to  the  amount 
of  the  excise  tax  which  should  be  levied;  and  we  are  unable  to  per- 
ceive  in    that    resort   any   interference   with   transportation,    domestic" 


555  REVENUE  AND  TAXATION.  Art.  XIII,  §  14 

or  foreign,  over  the  road  of  the  railroad  company,  or  any  regulation 
of  commerce  which  consists  in  such  transportation.  If  the  amount 
ascertained  were  specifically  imposed  as  the  tax,  no  objection  to  its 
validity  would  be  pretended.  And  if  the  inquiry  of  the  State  as  to 
the  value  of  the  privilege  were  limited  to  receipts  of  certain  past 
years  instead  of  the  year  in  which  the  tax  is  collected,  it  is  conceded 
that  the  validity  of  the  tax  would  not  be  affected;  and  if  hot,  we  do 
not  see  how  a  reference  to  the  results  of  any  other  year  could  affect 
its  character.  There  is  no  levy  by  the  statute  on  the  receipts  them- 
selves, either  in  form  or  fact;  they  constitute,  as  said  above,  simply 
the  means  of  ascertaining  the  value  of  the  privilege  conferred. 

"  'The  case  of  Philadelphia  and  Southern  M.  Steamship  Co.  v. 
Pennsylvania,  122  U.  S.  326,  30  L.  Ed.  1200,  7  Sup.  Ct.  Rep.  1118,  iu 
no  way  conflicts  with  this  decision.  That  was  the  case  of  a  tax,  in 
terms,  iipon  the  gross  receipts  of  a  steamship  company,  incorporated 
under  the  laws  of  the  State,  derived  from  the  transportation  of  per- 
sons and  property  between  different  states  and  to  and  from  foreign 
countries.  Such  tax  was  held,  without  anj'  dissent,  to  be  a  regula 
tion  of  interstate  and  foreign  commerce,  and,  therefore,  invalid.  We 
do  not  question  the  correctness  of  that  decision,  nor  do  the  views  we 
hold  in  this  case  in  any  way  qualify  or  impair  it.'  (State  of  Maine 
V.  Grand  Trunk  Ry.  Co.,  142" U.  S.  217,  228,  35  L.  Ed.  994,  996,  12  Sup. 
Ct.  Rep.  121.) 

"From  the  above  decision  four  justices  dissented,  which  was  re- 
garded as  slightly  impairing  its  authority.  But  in  New  York  L.  E.  & 
W.  R.  R.  Co.  V.  Pennsylvania,  158  U.  S.  431,  39  L.  Ed.  1043,  15  Sup. 
Ct.  Rep.  896,  the  same  principle  was  reaffirmed.  (See,  also,  Lehigh 
Valley  R.  R.  Co.  v.  Pennsylvania,  145  U.  S.  192,  36  L.  Ed.  672,  12 
Sup.  Ct.  Rep.  806;  Western  Union  Telegraph  Co.  v.  Taggart,  163  U.  S. 
1,  41  L.  Ed.  49,  16  Sup.  Ct.  Rep.  1054.) 

"The  most  recent  case  on  the  subject  is  Wisconsin  &  Michigan  Ry. 
Co.  V.  Powers,  191  U.  S.  379,  48  L.  Ed.  229,  24  Sup.  Ct.  Rep.  107. 

"The  right  of  the  State  to  levy  a  tax  on  the  gross  earnings  of  an 
interstate  carrier  was  involved  in  this  case,  together  with  one  other 
point  not  connected  with  our  question. 

"On  the  point  in  which  we  are  interested  the  court  said: 

"  'We  need  say  but  a  word  in  answer  to  the  suggestion  that  the  tax 
is  an  unconstitutional  interference  wnth  interstate  commerce.  In 
form  the  tax  is  a  tax  on  "the  property  and  business  of  such  railroad 
corporation  operated  within  the  State,"  computed  upon  certain  per- 
centages of  gross  income.  The  prima  facie  measure  of  the  plaintiffs 
gross  income  is  substantially  that  which  was  approved  in  Maine  v. 
Grand  Trunk  Railway  Co.,  142  U.  S.  217,  228,  35  L.  Ed.  994,  996,  12 
Sup.  Ct.  Rep.  121.  See,  also.  Western  Union  Telegraph  Co.  v.  Tagr 
gart,  163  U.  S.  1,  41  L.  Ed.  49,  16  Sup.  Ct.  Rep.  1054.     Decree  aflSrmed.' 

"This  was  a  unanimous  decision,  except  that  Mr,  Justice  White,  not 
having  heard  the  argument,  took  no  part  in  the  decision.  He  con- 
curred, however,  in  the  decision  in  Erie  Railroad  v.  Pennsylvania,  a 
case  involving  the  same  points. 

"It  appears,  then,  that  a  State  tax  on  the  property,  or  on  the  fran- 
chise, measured  by  the  gross  receipts  is  valid  and  Is  not  a  'regulation 


Art.  XIII,  §  14         CONSTITUTION  OF  1879.  556 

of  interstate  commerce,'  in  the  sense  in  which  the  right  to  regulata 
commerce  is  prohibited  to  the  states  by  the  Constitution." 

NATIONAL  BANKS. — In  regard  to  the  taxation  of  national  banks 
and  the  extent  of  the  power  of  the  state  in  that  regard,  the  report 
contained  the  following: 

Points  decided  by  the  courts  in  interpretation  of  section  5219  of  the 
Revised  Statutes,  and  bearing  on  the  amendment  proposed  by  the 
Commission. 
In  general. 

The  power  of  the  state  to  tax  national  banks  rests  solely  upon  the 
permission  of  Congress.  Congress  has  provided  the  method  in  which 
this  power  may  be  exercised,  and  no  other  method  is  legal. 

U.  S.  Eevised  Statutes,  sec.  5219:  "Nothing  herein  shall  prevent  all 
the  shares  in  any  association  from  being  included  in  the  valuation 
of  the  personal  property  of  the  owner  or  holder  of  such  shares,  in 
assessing  taxes  imposed  by  the  authority  of  the  state  in  which  the 
association  is  located;  but  the  legislature  of  each  state  may  deter- 
mine and  direct  the  manner  and  place  of  taxing  all  shares  of  national 
banking  associations  located  within  the  state,  subject  only  to  the  two 
restrictions,  that  the  taxation  shall  not  be  at  a  greater  rate  than  is 
assessed  upon  other  moneyed  capital  in  the  hands  of  individual  citi- 
zens of  such  state,  and  that  the  shares  of  any  national  banking  asso- 
ciation owned  by  nonresidents  of  any  state  shall  be  taxed  in  the  city 
or  town  where  the  bank  is  located,  and  not  elsewhere.  Nothing 
herein  shall  be  construed  to  exempt  the  real  property  of  associations 
from  either  state,  county,  or  municipal  taxes  to  the  same  extent, 
according  to  its  value  as  other  real  property  is  taxed." 

This  provision  has  been  interpreted,  (1)  By  definition  of  the  terms; 
(2)  By  prohibition  of  certain  powers  claimed  by  the  states;  (3)  By 
granting  certain  powers  to  the  states. 

A.  Defining  the  terms.  1.  "Other  moneyed  capital"  positively 
defined: 

(a)  "Other  moneyed  capital"  is  other  taxable  moneyed  capital. 
(People  v.  Commissioners,  4  Wall.  244,  18  L.  Ed.  344;  Lionberger  v. 
Eowse,  9  Wall.  468,  19  L.  Ed.  721.) 

(b)  If  none  other  is  taxable  it  may  be  bank  shares  only.  In  First 
Nat.  Bank  of  Wilmington  v.  Herbert,  44  Fed.  158,  it  was  held  that 
"where  the  only  subjects  of  taxation  were  real  estate,  livestock  and 
bank  shares,  it  was  no  ground  for  complaint"  that  "moneyed  capital" 
other  than  bank  shares  was  not  taxed. 

(c)  The  leading  authority  on  "other  moneyed  capital"  is  Mercan- 
tile National  Bank  v.  New  York,  121  U.  S.  138,  30  L.  Ed.  895,  7  Sup. 
Ct.  Rep.  826  (affirming  28  Fed.  776). 

In  this  case,  confirmed  by  subsequent  cases,  the  meaning  of  "other 
moneyed  capital"  is  restricted  to  capital  competing  with  national 
banks.  (First  Nat.  Bank  of  Garnett  v.  Ayers,  160  U.  S.  660,  40 
L.  Ed.  573,  16  Sup.  Ct.  Rep.  412;  Talbott  v.  Board  of  Commrs.  of  Sil- 
ver Bow  County,  139  U.  S.  438,  35  L.  Ed.  210,  11  Sup.  Ct.  Rep.  594; 
First  National  Bank  v.  Chapman,  173  U.  S.  205,  43  L.  Ed.  669,  19  Sup. 
Ct.  Rep.  407;  First  National  Bank  v.  Chehalis  County,  166  U.  S.  440, 


557  REVENUE  AND  TAX^VTION.  Art.  XIII,  §  14 

41  L.  Ed.  1069,  17  Sup.  Ct.  Eep.  629;  Bank  of  Commerce  v.  Seattle, 
166  U.  S.  463,  41  L.  Ed.  1079,  17  Sup.  Ct.  Eep.  996.) 

The  definitions  in  the  New  York  case  are: 

"Of  course  it  includes  shares  in  national"  banks;  the  use  of  the  word 
'other'  requires  that.  If  bank  shares  were  not  moneyed  capital,  the 
word  'other'  in  this  connection  would  be  without  significance.  But 
'moneyed  capital'  does  not  mean  all  capital,  the  value  of  which  is 
measured  in  terms  of  money.  In  this  sense,  all  kinds  of  real  and  per- 
sonal property  would  be  embraced  by  it,  for  they  all  have  an  esti- 
mated value  as  the  subjects  of  sale.  Neither  does  it  necessarily  in- 
clude all  forms  of  investments  in  which  the  interest  of  the  owner  is 
expressed  in  money.  Shares  of  stock  in  railroad  companies,  mining 
companies,  manufacturing  companies,  and  other  corporations,  are  rep- 
resented by  certificates  showing  that  the  owner  is  entitled  to  an 
interest,  expressed  in  money  value,  in  the  entire  capital  and  prop- 
erty of  the  corporation,  but  the  property  of  the  corporation  which 
constitutes  its  invested  capital  may  consist  mainly  of  real  and  per- 
sonal property,  which,  in  the  hands  of  individuals,  no  one  would  think  of 
calling  moneyed  capital,  and  its  business  may  not  consist  in  any  kind  of 
dealing  in  money,  or  commercial  representatives  of  money.  .  .  . 

"The  terms  of  the  act  of  Congress,  therefore,  include  shares  of 
stock  or  other  interests  owned  by  individuals  in  all  enterprises,  in 
which  the  capital  employed  in  carrying  on  its  business  is  money, 
where  the  object  of  the  business  is  the  making  of  profit  by  its  use 
as  money.  The  moneyed  capital  thus  employed  is  invested  for  that 
purpose  in  securities  by  way  of  loan,  discount,  or  otherwise,  which 
are  from  time  to  time,  according  to  the  rules  of  the  business,  reduced 
again  to  money  and  reinvested.  It  includes  money  in  the  hands  of 
individuals  employed  in  a  similar  way,  invested  in  loans  or  in  secu- 
rities, tor  the  payment  of  money,  either  as  an  investment  of  a  per- 
manent character,  or  temporarily  with  a  view  to  sale  or  repayment 
and  reinvestment.  In  this  way  the  moneyed  capital  in  the  hands  of 
individuals  is  distinguished  fi'om  what  is  known  generally  as  personal 
property." 

2.  "Other  moneyed   capital"  defined  by  exclusion. 

(a)  Trust  companies  under  the  New  York  statute  were  held  not 
to  be  competing  with  national  banks.  (.Jenkins  v.  Neff,  186  U.  S. 
230,  46  L.  Ed.  1140,  22  Sup.  Ct.  Eep.  905.) 

(b)  Savings  banks  held  not  to  be  competing  with  national  bank'% 
even  when  lending  on  personal  security.  (National  Bank  of  Eedemp- 
tion  V.  Boston,  12.5  U.  S.  60,  68,  31  L.  Ed.  689,  693,  8  Sup.  Ct.  Eep. 
772;  Davenport  Nat.  Bank  v.  Davenport  Bd.  of  Equalization,  123 
U.  S.  83,  31  L.  Ed.  94,  8  Sup.  Ct.  Eep.  73.) 

(e)  Building  and  Loan  Associations,  ibid.  (Mercantile  Nat.  Bank 
V.  Hubbard,  98  Fed.  465.) 

3.  "Taxation  shall  not  be  at  a  greater  rate." 

(a)  Equality  requires  equality  in  valuation  as  well  as  in  rate  of 
taxation. 

"This  valuation,  then,  is  part  of  the  assessment  of  taxes.  It  is  a 
necessary  part  of  every  assessment  of  taxes  which  is  governed  by  a 
ratio  or  percentage.     There  can  be  no  ratio  or  percentage  without  a 


Art.  XIII,  §  14         CONSTITUTION  OF  1879.  558 

valuation.  This  taxation,  says  the  act,  stall  not  be  at  a  greater  rate 
than  is  assessed  on  other  moneyed  capital.  What  is  it  that  shall  not 
be  greater!  The  answer  is,  taxation.  In  what  respect  shall  it  be 
not  greater  than  the  rate  assessed  upon  other  capital?  We  see  that 
Congress  had  in  its  mind  as  assessment,  a  rate  of  assessment,  and  a 
valuation,  and,  taking  all  these  together,  the  taxation  on  these  shares 
was  not  to  be  greater  than  on  other  moneyed  capital."  (People  v. 
Weaver,  100  U.  S.  539,  1.  c,  p.  545,  25  L.  Ed.  705,  707;  Merchants  and 
Manufacturers'  Bank  v.  Pennsylvania,  167  U.  S.  461,  42  L.  Ed.  236, 
17  Sup.  Ct.  Rep.  829.) 

See,  also,  what  has  been  held  to  be  discriminations  and  what  not, 
B  6  and  C  9. 

B.     The  states  may  not: 

1.  Exact  a  license,  or  analogous  tax.  (Second  Nat.  Bank  of  Titua- 
ville  (Pa.)   V.  Caldwell,  13  Fed.  429.) 

2.  Tax  any  property  of  national  banks  other  than  real  estate.  (San 
Francisco  v.  Bank,  92  Fed.  273;  Rosenblatt  v.  Johnston,  104  U.  S. 
462,  26  L.  Ed.  832;  First  Nat.  Bank  v.  San  Francisco,  129  Cal.  96,  61 
Pac.  778.) 

3.  Levy  a  tax  on  the  franchise.  (Owensboro  Nat.  Bank  v.  Owens- 
boro,  173  U.  S.  664,  43  L.  Ed.  850,  19  Sup.  Ct.  Rep.  537.) 

4.  Tax  the  capital  of  the  bank  in  solido  against  the  bank. 
(Numerous  state  cases.) 

5.  Tax  the  shares  of  nonresident  shareholders  elsewhere  than  in  the 
town  or  city  w^here  the  bank  is  located. 

(The  real  meaning  of  this  has  not  been  brought  out  in  any  cases, 
save  that  it  prohibits  the  nonresident  shareholders'  home  state  from 
taxing  the  shares.) 

6.  Discriminate  against  national  banks  in  any  of  the  following 
ways: 

(a)  By  allowing  state  banks  onlj^  to  deduct  capital,  etc.,  invested 
in  exempt  securities.  (Bradley  v.  Illinois,  4  Wall.  459,  18  L.  Ed. 
433.) 

(b)  By  levying  a  different  rate  on  national  banks  than  on  state 
banks.  (Merchants  and  Manufacturers'  Bank  v.  Pennsylvania,  167 
U.  S.  461,  42  L.  Ed.  236,  17  Sup.  Ct.  Rep.  829.) 

(c)  By  exempting  from  local  taxation  a  very  material  part,  rela- 
tively, of  other  moneyed  capital  in  the  hands  of  individual  citizens 
within  the  same  jurisdiction  or  taxing  district.  (As  railroad  and 
other  securities.)  (Boyer  v.  Boyer,  113  U.  S.  689,  28  L.  Ed.  1089,  5 
Sup.  Ct.  Rep.  706.) 

But  this  has  since  been  modified.     (See  definitions  A  1  c.) 

(d)  By  allowing  owners  of  personal  property  in  general  to  "swear 
off"  debts  from  personal  property  and  not  extending  the  same  privi- 
lege to  shareholders  in  national  banks.  (People  v.  Weaver,  100  U.  S. 
539,  25  L.  Ed.  705;  Supervisors  of  Albany  Co.  v.  Stanley,  105  U.  S. 
305,  26  L.  Ed.  1044,  1120;  Hills  v.  Nat.  Albany  Exchange  Bank,  105 
U.  S.  319,  26  L.  Ed.  1052.) 

But  this  has  been  modified.     (See  C  9  f.) 

(e)  By  allowing  taxpayers  in  general  to  deduct  their  debts  from 
the  sum  of  their  credits,  moneys  at  interest,  and  demands  against 
persons  or   corporations,   and   not   allowing   same   from   national  bank 


559  REVENUE  AND  TAXATION.  Art.  XIII,  §  14 

shares.  (Whitbeek  v.  Mercantile  Nat.  Bank,  127  U.  S.  193,  32  L.  Ed. 
118,  8  Sup.  Ct.  Eep.  1121;  Evansville  Nat.  Bank  v.  Britton,  105  U.  S. 
322,  26  L.  Ed.  1053.) 

But  this  has  been  modified.     (See  C  9  f.) 

(f)  By  intentional  and  habitual  undervaluation  of  other  moneyed 
capital.  (Pelton  v.  Commercial  National  Bank,  101  U.  S.  143,  25 
L.  Ed.  901;  Whitbeck  v.  Mercantile  National  Bank,  127  U.  S.  193,  32 
L.  Ed.  118,  8  Sup.  Ct.  Rep.  1121.) 

But  see  C  9  j. 

C.     The  states  may: 

1.  Tax  the  real  estate  of  national  banks  as  other  real  estate  is 
taxed.      (See  Eevised  Statutes,  sec.  5219.) 

There  is  no  provision  in  the  federal  statute  that  the  assessed  valua- 
tion of  the  real  estate  must  be  deducted  from  the  capital  in  deter- 
mining the  value  of  the  shares,  but  if  such  deduction  is  allowed  in 
any  other  cases,  as  of  other  corporations,  it  must  be  allowed  to  na- 
tional banks.  (City  Nat.  Bank  v.  Paducah,  2  Flip.  61,  1  Thomp.  Nat. 
Bank  Cas.  300,  Fed.  Cas.  No.  2743.) 

This  view  is  generally  held  by  state  courts,  but  based  on  state 
statutes. 

The  federal  courts  have  held  that  if  the  state  allows  double  taxa- 
tion of  other  moneyed  capital  invested  in  corporate  shares,  by  the 
taxation  of  both  the  shares  and  the  property,  the  national  bank  act 
does  not  prohibit  the  same  thing  in  the  case  of  national  banks. 
(People's  Nat.  Bank  v.  Marye,  107  Fed.  570.) 

2.  Tax  the  shareholders  on  the  value  of  the  shares,  subject  to  con- 
ditions imposed.    'See  statute. 

3.  Require  the  bank  to  pay  the  taxes  levied  on  shareholders,  as 
agent  for  shareholders.  (First  Nat.  Bank  v.  Commonwealth,  9  Wall. 
353,  19  L.  Ed.  701.) 

4.  Collect  taxes  levied  on  shares  by  distraint.  (First  Nat.  Bank  of 
Omaha  v.  Douglas  County,  3  Dill.  298,  Fed.  Cas.  No.  4809.) 

Also  enforce  other  pains  and  penalties  for  nonpayment.  (Palmer 
V.  M'cMahon,  133  U.  S.  660,  33  L.  Ed.  772,  10  Sup.  Ct.  Rep.  324.) 

5.  Require  the  bank  to  pay  the  taxes  levied  on  shareholders,  even 
though  state  banks  are  not  required  to  do  so.  (Merchants  &  Manu- 
facturers' Bank  of  Pennsylvania,  167  U.  S.  461,  42  L.  Ed.  236,  17  Sup. 
Ct.  Rep.  829.) 

6.  Assess  the  shares  at  their  fair  cash  value  on  the  assumption  that 
the  bank  will  continue  its  business,  and  not  at  what  they  would  be 
worth  in  case  the  bank  should  be  wound  up.  (Nat.  Bank  of  Com- 
merce V.  New  Bedford,  155  Mass.  313,  29  N.  E.  532.) 

In  Hepburn  v.  School  Directors,  23  Wall.  480,  23  L.  Ed.  112,  the 
supreme  court  held  that  the  par  value  of  the  stock  does  not  indicate 
its  value. 

7.  In  the  valuation  of  the  shares,  ignore  the  fact  that  the  capital 
or  surplus  is  invested  in  property  itself  exempt,  even  if  in  United 
States  bonds.  (Talbott  v.  Board  of  Commrs.  of  Silver  Bow  County, 
139  U.  S.  438,  35  L.  Ed.  210,  11  Sup.  Ct.  Rep.  594.) 

This  principle  extends  to  holding  of  bonds  or  stocks  taxed  in  the 
state.  (Pacific  Nat.  Bank  of  Tacoma  v.  Pierce  Co.,  20  Wash,  675, 
56  Pac.  936.) 


Art.  XIII,  §  14         CONSTITUTION  OF  1879.  560 

8.  Include  in  the  valuation  of  the  shares,  real  estate  located  in 
other  states  and  taxed  there.  (Commercial  Nat.  Bank  v.  Chambers, 
182  U.  S.  556,  45  L.  Ed.  1227,  21  Sup.  Ct.  Kep.  863;  American  Coal 
Co.  V.  Allegany  County  Commissioners,  59  Md.  185,  194.) 

Real  estate  within  the  state  and  taxed  there  must  be  deducted. 

9.  The  following  provisions  of  law  have  been  held  to  make  no  dis- 
crimination  against   national   banks. 

(a)  Exempting  property  held  for  charitable  or  religious  uses. 

(b)  Exempting  mortgages,  judgments,  recognizances,  and  money 
owing  on  agreements  to  sell  real  estate. 

In  Hepburn  v.  School  Directors,  23  Wall.  480,  23  L.  Ed.  112,  the 
court  said:  "This  is  a  partial  exemption  only.  It  was  evidently  in- 
tended to  prevent  a  double  burden  by  the  taxation  both  of  projaerty 
and  debts  secured  upon  it.  Necessarily  there  may  be  other  moneyed 
capital,  as  such  is  not  exempt.  Some  part  of  it  only  is.  It  could  not 
have  been  the  intention  of  Congress  to  exempt  bank  shares  from 
taxation  because  some  moneyed  capital  was  exempt." 

This  was  modified  in  Boyer  v.  Boyer,  113  U.  S.  689,  28  L.  Ed.  1089, 
5  Sup.  Ct.  Eep.  706.  See  under  discriminations  prohibited,  B  6  c, 
above. 

(c)  Exempting  shares  of  either  railroad,  business,  insurance  or 
mining  companies.  (Mercantile  Nat.  Bank  v.  New  York,  121  U.  S. 
138,  30  L.  Ed.  895,  7  Sup.  Ct.  Rep.  826.) 

(d)  Exempting  municipal  bonds.     (Case  last  above  cited.) 

(e)  Exempting  stocks  of  corporations  organized  under  laws  of 
other  states.  (National  Newark  Banking  Co.  v.  Newark,  121  U.  S. 
163,  30  L.  Ed.  904,  7  Sup.  Ct.  Rep.  839.) 

(f)  Allowing  deductions  of  debts  from  solvent  credits  when  the 
shares  of  state  banks  were  taxed  precisely  as  were  shares  in  national 
banks.  (First  Nat.  Bank  of  Wilmington  v.  Chapman,  173  U.  S.  205, 
43  L.  Ed.  669,  19  Sup,  Ct.  Rep.  407.) 

(g)  Allowing  unincorporated  banks  to  deduct  debts  before  deter- 
mining the  real  value  of  capital  employed.     (Case  last  above  cited.) 

(h)  Failure  to  assess  other  moneyed  capital.  (First  National  Bank 
V.  Chehalis  County,  166  U.  S.  440,  41  L.  Ed.  1069,  17  Sup.  Ct.  Rep. 
629.) 

(This  seems  contrary  to  the  spirit  of  the  decision  in  San  Francisco 
Nat.  Bank  v.  Dodge.) 

(i)  A  difference  in  the  rate  of  taxation,  provided  state  banks  and 
"competing  moneyed  capital"  are  treated  in  the  same  way.  (Mer- 
chants' and  Manufacturers'  Bank  v.  Pennsylvania,  167  U.  S.  461,  42 
L.  Ed.  236,  17  Sup.  Ct.  Rep.  829.) 

(j)  By  unintentional  differences  in  valuation  or  mere  mistakes  in 
judgment.  (Stanley  v.  Board  of  Supervisors  of  Albany  Co.,  121  U.  9. 
535,  30  L.  Ed.  1000,  7  Sup.  Ct.  Rep.  1234;  German  Nat.  Bank  v.  Kim- 
ball, 103  U.  S.  732,  26  L.  Ed.  469;  Exchange  Nat.  Bank  v.  Miller,  19 
Fed.  372.) 

But  these  rulings  are  shaken  by  San  Francisco  Nat.  Bank  v.  Dodge 

(k)  By  differences  in  the  violation  of  different  classes  of  person- 
alty, (Nat.  Bank  of  Baltimore  v.  Baltimore,  100  Fed.  24,  40  C,  C,  A. 
254.) 


i 


561  WATER  AND  WATER  RIGHTS.  Art.  XIV,  §  1 

ARTICLE  XIV. 

WATEE   AND   WATER   EIGHTS. 

Section  1.  The  use  of  all  water  now  appropriated,  or 
that  may  hereafter  be  appropriated,  for  sale,  rental,  or  dis- 
tribution, is  hereby  declared  to  be  a  public  use,  and  sub- 
ject to  the  regulation  and  control  of  the  state,  in  the  man- 
ner to  be  prescribed  by  law ;  provided,  that  the  rates  or 
compensation  to  be  collected  by  any  person,  company,  or 
corporation  in  this  state  for  the  use  of  water  supplied  to 
any  city  and  county,  or  city  or  toAvn,  or  the  inhabitants 
thereof,  shall  be  fixed,  annually,  by  the  board  of  super- 
visors, or  city  and  county,  or  city  or  town  council,  or  other 
governing  body  of  such  city  and  county,  or  city  or  town, 
by  ordinance  or  otherwise,  in  the  manner  that  other  ordi- 
nances or  legislative  acts  or  resolutions  are  passed  by  such 
body,  and  shall  continue  in  force  for  one  year  and  no 
longer.  Such  ordinances  or  resolutions  shall  be  passed  in 
the  month  of  February  of  each  year,  and  take  effect  on  the 
first  day  of  July  thereafter.  Any  board  or  body  failing 
to  pass  the  necessary  ordinances  or  resolutions  fixing 
water  rates,  where  necessary,  within  such  time,  shall  be 
subject  to  peremptory  process  to  compel  action  at  the  suit 
of  any  party  interested,  and  shall  be  liable  to  such  further 
processes  and  penalties  as  the  legislature  may  prescribe. 
Any  person,  company,  or  corporation  collecting  water  rates 
in  any  city  and  county,  or  city  or  town  in  this  state,  other- 
wise than  as  so  established,  shall  forfeit  the  franchises  and 
waterworks  of  such  person,  company,  or  corporation  to  the 
city  and  county,  or  city  or  town  where  the  same  are  col- 
lected, for  the  public  use. 

USE  OF  WATER. — The  provisions  of  this  section  are  both  self- 
executing  and  mandatory.  (Spring  Valley  W.  W.  v.  San  Francisco 
Board  of  Suprs.,  61  Cal.  18.) 

All  the  provisions  of  the  Constitution  in  regard  to  water  in  mu- 
nicipalities must  be  taken  and  read  together,  and  effect  given  to  each 
of  them.  They  must  receive  a  practical  common-sense  construction, 
and  be  considered  with  reference  to  the  prior  state  of  the  law,  and 
the  mischief  intended  to  be  remedied.  (People  v,  Stephens,  02  Cal. 
209.) 

Constitution — 36 


Art.  XIV,  §  1  CONSTITUTION  OF  1879.  562 

Prior  to  the  adoption  of  the  Constitution  of  1879,  the  right  of  lay- 
ing pipes  in  the  streets  of  any  incorporated  city  or  town  for  the  pur- 
pose of  supplying  the  inhabitants  thereof  with  water  lay  only  in 
grant  from  the  legislature.     (People  v.  Stephens,  62  Cal.  209.) 

This  section  does  not  apply  to  a  case  of  a  corporation  which  ac- 
quires and  holds  water  solely  for  the  use  of  its  stockholders.  (Mc- 
Fadden  v.  Board  of  Suprs.  of  Los  Angeles,  74  Cal.  571,  16  Pac.  397.) 

The  water  right  of  a  corporation  which  was  in  private  ownership  at 
the  time  the  Constitution  of  1879  was  adopted  did  not  become  dedi- 
cated to  the  public  use  by  the  adoption  of  the  Constitution  without 
the  consent,  express  or  implied,  of  its  owners.  (Stanislaus  Water  Co. 
V.  Bachman,  152  Cal.  716,  15  L.  E.  A.  (N.  S.)  359,  93  Pac.  858.) 

This  section  has  no  reference  to  water  furnished  by  a  municipality 
itself,  but  refers  to  the  rates  to  be  collected  for  water  authorized  by 
section  19,  article  XI,  of  the  Constitution,  to  be  introduced  into  cities 
by  individuals  or  companies  incorporated  for  that  purpose.  (People 
V,  Stephens,  62  Cal.  209.) 

By  this  section  water  is  declared  to  be  a  public  use,  subject  to  the 
control  and  regulation  of  the  legislature  in  the  manner  prescribed  by 
statute;  such  regulation,  however,  being  subject  to  certain  constitu- 
tional i^rovisions,  and  among  them  the  provision  in  respect  to  rates. 
(People  V.  Stephens,  62  Cal.  209.) 

Under  this  section  the  use  of  water  for  sale  is  a  public  use,  and  the 
price  at  which  it  shall  be  sold  is  a  matter  within  the  power  of  the 
■board  of  supervisors  to  determine.  (Spring  Valley  W.  W.  v.  San 
Francisco,  82  Cal.  286,  16  Am.  St.  Eep.  116,  6  L.  R.  A.  756,  22  Pac. 
910,  1046;  Fellows  v.  Los  Angeles,  151  Cal.  52,  90  Pac.  137.) 

This  section  was  not  intended  to  appropriate  water  for  the  use  of 
the  public  without  compensation.  (People  v.  Elk  River  Mill  etc.  Co., 
107  Cal.  221,  48  Am.  St.  Rep.  125,  40  Pac.  531.) 

When  water  is  designated,  set  apart,  and  devoted  to  purposes  of 
sale,  rental,  or  distribution,  it  is  ".appropriated"  within  the  meaning 
of  this  section,  without  reference  to  the  mode  of  its  acquisition. 
(Merrill  v.  Southside  Irr.  Co.,  112  Cal.  426,  44  Pac.  720.) 

A  land  owner  may,  by  contract  with  a  corporation  supplying  water 
for  irrigation,  acquire  and  attach  to  his  land  a  permanent  right  to 
the  use  of  water  for  irrigation.  (Stanislaus  Water  Co.  v.  Bachman, 
152  Cal.  716,  15  L.  R.  A.  (N.  S.)  359,  93  Pac.  858.) 

A  public  service  water  company  which  is  appropriating  water  for 
sale,  rental  and  distribution  under  the  Constitution  cannot  confer 
upon  a  consumer  any  preferential  right  to  the  use  of  any  part  of  its 
water.  (Leavitt  v.  Lassen  Irr.  Co.,  157  Cal.  82,  29  L.  R.  A.  (N.  S.) 
213,  106  i'ac.  404.) 

The  statutory  provision  (Stats.  1881,  p.  54)  that  any  person  or  cor- 
poration collecting  higher  rates  for  water  than  those  fixed  shall  upon 
complaint  of  any  water-rate  payer  and  upon  conviction  therefor  for- 
feit its  franchise  and  waterworks  to  the  city  and  county,  city  or  town 
wherein  the  water  is  furnished,  is  unconstitutional  because  inconsistent 
with  this  section.  (Hatfield  v.  People's  Water  Co.,  25  Cal.  App.  502, 
144  Pac.  300;  Hatfield  v.  People's  Water  Co.,  25  Cal.  App.  711,  145 
Pac.  164.) 


563  WATER  AND   WATER   RIGHTS.  Art.  XIV,  §  1 

Under  this  section  and  sections  1410-1417,  Civil  Code,  an  irrigation 
company  by  appropriating  water  for  use  on  unoccupied  public  lands, 
and  in  advance  of  the  actual  construction  of  works,  does  not  acquire 
the  water  right  appurtenant  to  such  lands  so  as  to  be  enabled  to 
charge  subsequent  settlers  for  such  naked  right  in  addition  to  rates 
for  the  water  furnished.  (Imperial  Water  Co.  No.  5  v.  Holabird,  197 
Fed.  4,  116  C.  C.  A.  526.) 

That  water  appropriated  for  sale  is  appropriated  to  a  public  use 
only  means  that  the  few  within  reach  of  the  supply  may  demand  it 
for  a  reasonable  price.  (San  Joaquin  &  K.  R.  etc.  Irr.  Co.  v.  Stan- 
islaus County,  233  U.  S.  454,  58  L.  Ed.  1041,  34  Sup.  Ct.  Rep.  652.) 

The  Constitution  does  not  impress  the  distribution  of  appropriated 
water  with  a  public  use.  (Niehaus  Bros.  Co.  v.  Contra  Costa  Water 
Co.,  159  Cal.  305,  36  L.  R.  A.  (N.  S.)   1045,  113  Pac.  375.) 

The  use  of  all  water  appropriated  for  sale,  rental  or  distribution  is 
a  public  use,  subject  to  the  regulation  and  control  of  the  state,  and 
the  rates  to  be  collected  by  any  person,  company  or  corporation  in 
this  state  for  the  use  of  water  supplied  to  any  city  or  town,  or  the 
inhabitants  thereof,  must  be  fixed,  annually,  by  the  city  or  town 
council  or  other  governing  body  of  such  city  or  town.  (Contra  Costa 
Water  Co.  v.  Oakland,  159  Cal.  323,  113  Pac.  668.) 

This  section  applies  to  cases  where  one  has  appropriated  water  gen- 
erally, for  sale,  rental  or  distribution,  and  not  to  cases  where  sales 
are  made  to  particular  persons  at  a  fixed  price  by  ordinary  contracts 
of  purchase  and  sale.  (Thayer  v.  California  Development  Co.,  164 
Cal.  117,  128  Pac.  21.) 

When  a  municipality  goes  into  the  business  of  furnishing  its  in- 
habitants with  water,  itself  purchasing  water  from  a  water  company 
under  a  contract  and  then  delivering  it  through  its  own  system  to  its 
inhabitants,  the  contract  price  therefor  does  not  constitute  the  "rates" 
for  the  "compensation"  subject  to  the  "regulation"  mentioned  in  this 
section,  and  the  section  does  not  apply  to  such  a  municipality.  (Ma- 
rin Water  etc.  Co.  v.  Town  of  Sausalito,  168  Cal.  587,  143  Pac.  767.) 

A  contract  between  a  municipality  owning  its  own  water  system 
and  a  water  company  for  a  bulk  supply  of  water  for  the  use  of  the 
municipality  and  its  inhabitants  for  a  period  of  years  is  not  a  viola- 
tion of  this  section.  (Marin  Water  etc.  Co.  v.  Town  of  Sausalito, 
168  Cal.  587,  143  Pac.  767.) 

A  municipality  does  not  violate  this  section,  when  it  itself  fur- 
nishes its  inhabitants  with  water,  buying  the  water  from  a  water 
company  under  a  contract,  and  agrees  to  establish  for  a  period  of 
years  rates  which  will  produce  a  sum  sufficient  to  pay  for  all  water 
furnished  by  the  water  company.  (Marin  Water  etc.  Co.  v.  Town  of 
yausalito,  168  Cal.  587,  143  Pac.  767.) 

Under  this  section  it  is  made  the  duty  of  a  water  company  supply- 
ing water  for  distribution  to  furnish  water  upon  tender  of  the  estab- 
lished rates,  and  no  other  duty  than  such  tender  can  be  lawfully  pre- 
scribed or  imposed  by  such  company  as  a  condition  for  supplying 
water  as  required  by  law.  (Crow  v.  San  Joaquin  etc.  Irr.  Co.,  130 
Cal.  309,  62  Pac.  562,  1058.) 

An  agreement  by  a  consumer,  upon  being  furnished  water  upon 
credit,  that  no  water  need  be  furnished  him  in  succeeding  years  until 


Art.  XIV,  §  1  CONSTITUTION  OF  1879.  564 

such  water  is  paid  for,  is  without  consideration,  it  being  the  duty  of 
the  company  to  furnish  him  the  water  whether  he  made  such  agree- 
ment or  not.  (Crow  v.  San  Joaquin  etc.  Irr.  Co.,  130  Cal.  309,  ee'Pac 
562,  1058,  Beatty,  C.  J.,  and  McFarland,  J.,  dissenting.) 

It  is   the   duty  of  a  water  company   to   furnish   water  upon   tender 
of  the  established  rates.     (Lowe  v.  Yolo   Co.   etc.  Water  Co     8   Cal 
App.  167,  96  Pac.  379.) 

The  duty  to  furnish  water  arises  from  the  Constitution  itself 
(Lowe  V.  Yolo  County  etc.  Water  Co.,  8  Cal.  App.  167,  96  Pac.  379.) 

For  failure  to  deliver  water,  exemplary  damages  may  be  recovered 
in  case  of  fraud,  malice,  or  oppression.  (Lowe  v,  Yolo  County  etc. 
Water  Co.,  8  Cal.  App.  167,  96  Pac.  379.) 

It  is  the  duty  of  a  canal  company  to  supply  water  for  irrigation 
under  the  following  conditions:  1.  The  land  for  which  water  is  sought 
to  irrigate  must  lie  within  the  flow  of  the  ditch;  2.  A  showing  that 
the  corporation  has  the  water  in  quantity  required  to  supply  the  one 
demanding  and  all  others  equally  entitled:  3.  That  notice  be  given 
the  irrigating  company  of  the  amount  of  water  required;  4.  Payment 
of  the  rates  or  tender  thereof  when  due,  and  an  allegation  of  willing- 
ness to  pay  when  due.  (Cozzens  v.  North  Fork  Ditch  Co.,  2  Cal  Ann 
404,  84  Pac.  342.) 

A  petition  for  a  writ  of  mandate  to  compel  the  furnishing  of  water 
which  alleges  that  the  company  has  a  sufficient  amount  of  water  to 
supply  plaintiff,  but  does  not  allege  that  the  quantity  is  sufficient  for 
plaintiff  and  others  equally  entitled  thereto  is  insufficient.  (Cozzens 
V.  North  Fork  Ditch  Co.,  2  Cal.  App.  404,  84  Pac.  342.) 

A  petition  for  mandamus  alleging  that  defendant  was  incorporated 
for  the  purpose,  and  is  engaged  in  the  business  of  distributing  water 
for  compensation  to  the  residents  of  a  certain  town,  of  which  peti- 
tioner is  a  resident  and  freeholder,  and  has  been  supplied  with  water, 
and  the  company  has  a  sufficient  quantity  to  supply  him,  sufficiently 
shows  that  defendant  is  in  control  of  a  public  use  and  that  plaintiff 
is  a  beneficiary  of  that  use.  (Mahoney  v.  American  Land  etc  Co 
2  Cal.  App.  185,  83  Pac.  267.) 

A  person  engaged  in  furnishing  water  to  the  inhabitants  of  a  city 
under  a  franchise  permitting  him  to  lay  pipes  through  the  streets, 
cannot  without  reasonable  cause  shut  off  the  water  from  one  of  such 
inhabitants,  who  is  using  the  same  at  a  fixed  rate.  (McCrary  v. 
Beaudry,  67  Cal.  120,  7  Pac.  264.) 

It  was  the  duty  of  the  legislature  to  enact  all  needful  laws  to  carry 
this  section  into  effect;  but  the  failure  of  the  legislature  to  enact  such 
laws  could  not  prevent  the  establishment  of  the  rates  required  to  be 
established  by  the  Constitution.     (People  v.  Stephens,  62  Cal.  209.) 

The  provision  of  the  act  of  1858,  requiring  water  companies  to  fur- 
nish water  free  of  charge  to  cities  and  counties,  was  abrogated  by 
this  section.  (Spring  Valley  W.  W.  v.  Board  of  Suprs.  of  San  Fran- 
cisco, 61  Cal.  18.) 

The  act  of  1858  providing  for  the  fixing  of  water  rates  by  a  com- 
mission was  superseded  by  this  section  of  the  Constitution.  (Spring 
Valley  W.  W.  v.  Board  of  Suprs.  of  San  Francisco,  61  Cal.  3.) 


565  WATER  AND   WATER  RIGHTS.  Art.  XIV,  §  1 

A  water  company  has  the  right  to  shut  ofif  the  water  from  a  con- 
sumer who  refuses  to  pay  for  the  water  supplied.  (Sheward  v.  Citi- 
zens' Water  Co.,  &0  Cal.  635,  27  Pac.  439.) 

It  is  only  the  use  of  water  appropriated  for  sale,  rental  or  dis- 
tribution which  is  a  public  use  under  this  section,  and  the  public  use 
impressed  upon  any  particular  water  supply  may  be  abandoned. 
(Eseondido  Mut.  Water  Co.  v.  Escondido,  169  Cal.  772,  147  Pac.  1172.) 

The  use  of  water  is  a  public  use,  and  a  water  corporation  having 
appropriated  water  for  sale,  rental  and  distribution,  may  be  regulated 
as  any  other  public  utility.  (In  re  Application  of  James  A.  Murray, 
2  C.  R.  C.  464,  495.) 

Sections  1  and  2  deal  only  with  the  power  of  the  state  to  regulate 
agencies  impressed  with  a  public  use,  which  power  is  entirely  inde- 
pendent of  the  method  of  acquisition  by  them  of  water.  (Palmer  v. 
Southern  Cal.  Mt.  Water  Co.,  2  C.  R.  C.  43,  54.) 

The  statutes  passed  pursuant  to  this  article  up  to  1909  could  not 
be  construed  to  amount  to  a  contract  on  the  part  of  the  state  to  waive 
its  admitted  right  to  regulate  agencies  furnishing  water.  (In  re 
Application   of  James   A.   Murray,   2   C.   R.   C.   464,   499.) 

The  delegation  of  power  in  this  section  affects  simply  the  estab- 
lishment of  rates  or  charges  for  water,  and  not  adequacy  of  service 
or  the  making  of  extensions.  (Pratt  v.  Spring  Valley  Water  Co.,  4 
C,  R.  C.   1077,  1083.) 

Liabilities  of  water  companies.     See  note,  81  Am.  St.  Rep.  478. 
Liability  of  water  companies  to   citizens  for  nonperformance   of 
contracts  with  municipalities.     See  note,  18  Am.  St.  Rep.  380. 

Water  rates. — By  this  section  the  power  to  fix  water  rates  in  San 
Francisco  is  granted  solely  to  the  board  of  supervisors,  and  the  mayor 
has  no  power  to  veto  an  ordinance  fixing  such  rates.  (Jacobs  v. 
Board  of  Supervisors,  100  Cal.  121,  34  Pac.  630.) 

The  supervisors  are  not  bound  to  give  notice  to  a  water  company 
of  its  intention  to  fix  water  rates;  but  they  must  make  a  proper  effort 
to  procure  all  necessary  information,  to  enable  them  to  act  intelli- 
gently and  fairly  in  fixing  the  rates.  (Spring  Valley  W.  W.  v.  San 
Francisco,  82  Cal.  286,  16  Am.  St.  Rep.  116,  6  L.  R.  A.  756,  22  Pac. 
910,  1046.) 

The  proceeding  to  fix  water  rates  is  not  adversary,  but  is  conducted 
without  notice  to  the  rate  payer  or  water  companj'.  (San  Diego 
Water  Co.  v.  San  Diego,  118  Cal.  556,  62  Am.  St.  Rep.  261,  38  L.  R. 
A.  460,  50  Pac.  633.) 

This  section  is  not  opposed  to  the  United  States  Constitution  in 
not  giving  the  water  company  notice.  (San  Diego  Water  Co.  v.  San 
Diego,  118  Cal.  556,  62  Am.  St.  Rep.  261,  38  L.  R.  A.  460,  50  Pac.  633.) 

If  the  board  acts  arbitrarily,  without  investigation,  or  without  the 
exercise  of  judgment  and  discretion,  or  fixes  rates  so  palpably  unrea- 
sonable and  unjust  as  to  amount  to  arbitrary  action,  it  violates  its 
duty  and  goes  beyond  the  powers  conferred  upon  it.  (San  Diego 
Water  Co.  v.  San  Diego,  118  Cal.  556,  62  Am.  St.  Rep.  261,  38  L.  R. 
A.  460,  50  Pac.  633.) 

Where  an  ordinance  fixing  rates  does  not  show  upon  its  face  that 
the  rates  to  be  collected,  where  the  amount  of  consumption  is  ascer- 


Art.  XIV,  §  1  CONSTITUTION  OF  1879.  566 

tained  by  a  meter,  are  different  from  those  collected  from  persons 
who  are  rated  by  the  use  to  which  they  apply  the  water,  it  will  not 
be  held  invalid  because  that  may  be  the  result.  (Sheward  v.  Citi- 
zens' Water  Co.,  90  Cal.  635,  27  Pac.  439.) 

The  action  of  the  city  council  in  fixing  rates  is  legislative  and  it  is 
to  receive  all  the  presumptions  and  sanctions  which  belong  to  acts 
of  legislative  bodies  generally;  and  the  rates  must  be  assumed  to 
have  been  so  fixed  as  to  be  just  both  toward  the  rate  payer  and  the 
company.      (Sheward  v.  Citizens'  Water  Co.,  90  Cal.  635,  27  Pac.  439.) 

An  ordinance  fixing  water  rates,  and  providing  for  meter  and  house 
rates  at  the  option  of  the  consumer  and  providing  that  the  meter 
shall  be  supplied  at  the  expense  of  the  water  company,  is  valid. 
(Spring  Valley  W.  W.  v.  San  Francisco,  82  Cal.  286,  16  Am.  St.  Eep. 
lie,  6  L.  E.  A.  756,  22  Pac.  910,  1046.) 

When  the  Constitution  provides  for  the  fixing  of  rates,  or  com- 
pensation for  the  use  of  water,  it  means  reasonable  rates  and  just 
compensation.  (Spring  Valley  W.  W.  v.  San  Francisco,  82  Cal.  286, 
16  Am.  St.  Eep.  116,  6  L.  E.  A.  756,  22  Pac.  910,  1046.) 

The  power  of  regulating  rates  is  not  a  power  of  confiscation,  or  to 
take  the  property  of  the  water  company  without  just  compensation; 
and,  if  the  power  is  arbitrarily  exercised,  without  a  fair  investigation, 
and  the  rates  are  so  fixed  as  to  render  it  impossible  to  furnish  the 
water  without  loss,  it  is  not  above  the  control  of  the  courts.  (Spring 
Valley  W.  W.  v.  San  Francisco,  82  Cal.  286,  16  Am.  St.  Eep.  116,  6 
L.  E.  A.  756,  22  Pac.  910,  1046.) 

If  the  board  have  fairly  investigated  and  exercised  their  discretion 
in  fixing  the  rates,  the  courts  have  no  right  to  interfere  on  the  sole 
ground  that,  in  the  judgment  of  the  court,  the  rates  fixed  are  not 
reasonable.  (Spring  Valley  W.  W.  v.  San  Francisco,  82  Cal.  286,  16 
Am.  St.  Eep.  116,  6  L.  E.  A.  756,  22  Pac.  910,  1046.) 

The  fixing  of  water  rates  is  not  judicial.  (Spring  Valley  W.  W.  v, 
Bartlett,  63  Cal.  245.) 

An  ordinance  establishing  water  rates,  and  fixing  certain  rates  to 
be  paid  by  individuals  and  certain  rates  to  be  paid  by  the  city,  and 
providing  that,  if  the  city  pays  its  rates,  the  rates  of  the  individual 
consumers  shall  be  diminished  twenty-five  per  cent,  is  void,  as  the 
city  has  no  power  to  make  such  condition.  (San  Francisco  etc.  Fac- 
tory v.  Brickwedel,  60  Cal.  166.) 

This  section  confers  upon  the  cities  in  this  state  the  power  to  fix 
the  rates  at  which  water  is  to  be  delivered  to  the  inhabitants  of  a 
city  by  any  company  engaged  in  that  service.  (Title  Guarantee  etc. 
Co.  V.  Eailroad  Commission,  168  Cal.  295,  142  Pac.  878.) 

Under  this  article  and  the  statute  of  1885  as  amended,  passed 
pursuant  thereto,  the  boards  of  supervisors  were  empowered  only  to 
fix  maximum  rates,  and  until  they  had  fixed  such  maximum  rates 
the  parties  were  free  to  contract,  and  after  such  maximum  rates 
had  been  fixed  the  parties  were  free  to  contract  within  such  maximum 
rates.     (In  re  Application  of  James  A.  Murray,  2  C.  E.  C.  464,  486.) 

Even  as  to  a  public  utility  water  corporation,  the  right  to  fix  a 
rate  by  contract  is  subject  to  the  power  of  the  state  to  substitute  a 
rate  fixed  by  the  properly  constituted  authorities  for  the  rate  agreed 


567  WATER   AND   WATER  RIGHTS.  Art.  XIV,  §  1 

upon  by  contract.  (In  re  Application  of  James  A  Murray,  2  C.  E.  C. 
464,   494.) 

See  further  as  to  water  rates,  notes  to  section  33,  article  IV  and 
section  19,  article  XI. 

Failure  to  fix  rates. — This  provision  does  not  authorize  the  court  by 
mandamus  to  compel  the  board  to  fix  the  rates,  where  their  action 
fixing  them  has  been  vetoed  by  the  mayor.  (Jacobs  v.  Board  of  Su- 
pervisors, 100  Cal.  121,  34  Pac.  630.) 

An  ordinance  fixing  rates  passed  subsequently  to  the  month  of  Feb- 
ruary, and  prior  to  July  1st,  when  it  is  required  to  take  effect,  is 
equally  valid,  if  passed  voluntarily,  as  if  passed  under  peremptory 
process.     (Fitch  v.  Board  of  Supervisors,  122  Cal.  285,  54  Pac.  901.) 

The  provision  of  this  section  authorizing  the  legislature  to  pre- 
scribe "further  processes  and  penalties"  only  authorizes  such  pro- 
cesses and  penalties  as  are  within  the  power  of  the  legislature,  in 
view  of  other  limitations  of  the  Constitution.  (Fitch  v.  Board  of 
Supervisors,  122  Cal.  2S5,  54  Pac.  901.) 

A  taxpayer  is  not  an  "interested  party"  within  the  meaning  of  this 
section.     (Fitch  v.  Board  of  Supervisors,  122  Cal.  285,  54  Pac.  901.) 

In  view  of  section  20,  article  VI,  the  legislature  cannot  authorize 
the  removal  of  a  board  of  supervisors  from  office  for  delay  in  fixing 
water  rates  "at  the  suit  of  any  interested  party,"  or  in  the  name  of 
any  individual.  (Fitch  v.  Board  of  Supervisors,  122  Cal.  285,  54  Pac. 
901.) 

Where  the  owners  of  water  unite  in  some  joint  method  of  distribut- 
ing the  water  among  them,  such  as  the  formation  of  a  corporation, 
this  does  not  make  the  water  a  public  use.  (Hildreth  v.  Montecito 
C.  W.  Co.,  139  Cal.  22,  72  Pac.  395.) 

Where  the  execution  of  an  ordinance  fixing  water  rates  has  been 
enjoined,  the  city  may,  pending  such  injunction,  enter  into  an  agree- 
ment with  the  water  company  fixing  a  price  to  be  paid  by  the  city 
for  water  furnished.  (Contra  Costa  W.  Co.  v.  Breed,  139  Cal.  432, 
73  Pac.  189.) 

The  words  "otherwise  than  as  so  established,"  mean  in  violation 
of  or  contrary  to  the  established  rates.  (Contra  Costa  W.  Co.  v. 
Breed,  139  Cal.  432,  73  Pac.  189.) 

As  to  the  effect  of  an  injunction  forbidding  the  execution  of  an  or- 
dinance establishing  water  rates,  see  Contra  Costa  W.  Co.  v.  Breed, 
139  Cal.  432,  73  Pac.  189. 

Sec.  2.  The  right  to  collect  rates  or  compensation  for 
the  use  of  water  supplied  to  any  county,  city  and  county, 
or  town,  or  the  inhabitants  thereof,  is  a  franchise,  and  can- 
not be  exercised  except  by  authority  of  and  in  the  manner 
prescribed  by  law, 

WATER  RATES. — The  right  to  collect  rates  for  water  is  a  fran- 
chise. (Spring  Valley  W.  W.  v.  Schottler,  62  Cal.  69;  People  v.  Ste- 
phens, 62  Cal.  209;  San  Joaquin  etc.  Co.  v.  Merced  County,  2  Cal.  App. 
593,  84  Pac.  285.) 


Art.  XIV,  §  1  CONSTITUTION  OF  1879.  568 

This  section  does  not  take  away  the  right  under  the  general  law  of 
the  land  to  collect  rates  or  compensation  fixed  by  contract  of  the 
parties  for  the  irrigation  of  lands,  in  the  absence  of  a  special  statute, 
or  authorized  provision,  regulating  such  rates.  (Fresno  Canal  etc. 
Co.  V.  Park,  129  Cal.  437,  62  Pac.  87;  San  Diego  Plume  Co.  v.  Souther, 
104  Fed.  706,  44  C.  C.  A.  143,  on  rehearing  of  90  Fed.  164,  32  C.  C.  A. 
548.) 

Prior  to  March  23,  1912,  the  rental  and  distribution  of  water  out- 
side of  municipalities  was  subject  to  regulation  by  county  boards 
of  supervisors  under  provisions  of  an  act  passed  in  1885,  and  amended 
in  1897,  pursuant  to  this  section.  (In  re  Application  of  James  A, 
Murray,  2   C.  E.  C.  464,  477.) 


569  HARBOR  FRONTAGES,  ETC.      Art.  XV,  §§    1,  2 

ARTICLE  XV. 

HARBOR  FRONTAGES,  ETC. 

Section  1.  The  right  of  eminent  domain  is  hereby  de- 
clared to  exist  in  the  state  to  all  frontages  on  the  naviga- 
ble waters  of  this  state. 

Sec.  2.  No  individual,  partnership,  or  corporation, 
claiming  or  possessing  the  frontage  or  tidal  lands  of  a  har- 
bor, bay,  inlet,  estuary,  or  other  navigable  water  in  this 
state,  shall  be  permitted  to  exclude  the  right  of  Avay  to 
such  water  whenever  it  is  required  for  any  public  purpose, 
nor  to  destroy  or  obstruct  the  free  navigation  of  such 
water;  and  the  legislature  shall  enact  such  laws  as  will 
give  the  most  liberal  construction  to  this  provision,  so  that 
access  to  the  navigable  waters  of  this  state  shall  be  always 
attainable  for  the  people  thereof. 

NAVIGABLE  WATERS. — If  dams  upon  tide-water  slouglis,  though 
the  sloughs  be  not  themselves  navigable,  result  in  the  obstruction  of 
a  navigable   stream,   they  constitute   a  public  nuisance,   and  are  for- 
bidden by  this  section.     (People  v.  Russ,  132  Cal.  102,  64  Pac.  111.) 
Rights  of  the  public  upon  the  seashore.     See  note,  16  Am.  Rep. 

51. 
What  waters  are  navigable.     See  note,  126  Am.  St.  Rep.  710. 

TIDE-IiANDS. — The  provisions  of  this  section  are  mandatory  and 
prohibitory,  and  operate  as  a  limitation  upon  the  power  of  the  legis- 
lature in  the  matter  of  the  disposition  of  tide-lands,  and  are  to  be 
considered  as  incorporated  in  any  grant  or  patent  of  such  lands,  and 
as  a  result  the  grantee  of  such  lands  must  leave  the  navigable  waters 
open  for  public  use.     (Forestier  v.  Johnson,  164  Cal.  24,  127  Pac.  156.) 

This  section  of  the  present  Constitution  deprives  the  legislature  of 
power  to  dispose  of  the  tide-lands  fronting  upon  navigable  water  so 
as  to  entitle  the  grantee  to  destroy  or  interfere  with  the  public  ease- 
ment for  navigation,  and  it  to  that  extent  repeals  all  laws  which 
theretofore  may  have  purported  to  authorize  such  alienation.  (People 
V.  California  Fish  Co.,  166  Cal.  576,  138  Pac.  79.) 

This  section  makes  the  doctrine  that  the  rights  of  the  grantee  of 
tide-lands  are  subject  to  the  public  right  of  navigation  a  part  of  the 
fundamental  law  of  the  state.  (People  v.  Southern  Pac.  R.  R.  Co., 
166  Cal.  614,  138  Pac.  94,  concurring  opinion  by  Beatty,  C.  J.) 

The  use  of  lands  fronting  on  navigable  water  for  wharves,  used  by 
a  railroad  in  its  own  business,  is  not  forbidden  by  this  section. 
(Vallejo  etc.  R.  R.  Co.  v.  Reed  Orchard  Co.,  169  Cal.  545,  147  Pac. 
238.) 


Art.  XV,  §  3  CONSTITUTION  OF  1879.  570 

Sec.  3.  All  tide-lands  within  two  miles  of  any  incorpo- 
rated city  or  town  in  this  state,  and  fronting  on  the  waters 
of  any  harbor,  estuary,  bay,  or  inlet  used  for  the  purposes 
of  navigation,  shall  be  withheld  from  grant  or  sale  to  pri- 
vate persons,  partnerships,  or  corporations. 

TIDE-IiANDS. — The  constitutional  injunction  against  the  grant  or 
sale  of  "tide-lands  within  two  miles  of  any  incorporated  city  or  town 
in  this  state,  and  fronting  on  the  waters  of  any  harbor,  estuary,  bay, 
or  inlet,"  forbids  the  legislature  from  disposing  of  them  in  any  man- 
ner, and  the  statute  of  limitations  in  respect  to  lands  owned  by  the 
state  is  subordinate  to  this  constitutional  provision,  and  is  thereby 
made  inapplicable  to  such  lands.  (People  v.  Kerber,  152  Cal.  731,  125 
Am.  St.  Eep.  93,  93  Pac.  878.) 

The  town  of  Wilmington  as  delimited  by  the  act  of  February  20, 
1872,  purporting  to  create  and  incorporate  it,  notwithstanding  a  town 
government  was  never  organized  therein,  became  and  remained  an 
incorporated  town  from  the  date  of  the  passage  of  the  act  until  its 
repeal  on  March  12,  1887,  within  the  meaning  of  this  section,  and  of 
section  3488  of  the  Political  Code  as  it  existed  prior  to  1901,  exclud- 
ing from  sale  all  tide-lands  or  swamp-lands  within  two  miles  of  any 
incorporated  city  or  town.  (People  v.  California  Fish  Co.,  166  Cal. 
576,  138  Pac.  79.) 

The  legislature  can  lease  reclaimed  tide-lands  or  ratify  a  city  lease 
of  them.  (San  Pedro  etc.  E.  R.  Co.  v.  Hamilton,  161  Cal.  610,  37 
L.  R.  A.  (N.  S.)   686,  119  Pac.  1073.) 

The  words  "tide-lands"  are  to  be  construed  to  embrace  lands  prop- 
eily  described  as  submerged  lands,  and  will  be  so  construed  to  pro- 
tect the  harbors  of  cities  and  towns  from  falling  into  private  monopo- 
listic ownership.  (San  Pedro  etc.  R.  R.  Co.  v.  Hamilton,  161  Cal.  610, 
616,  37  L.  R.  A.  (N.  S.)  686,  119  Pac.  1073.) 

The  words  "grant  and  sale"  convey  the  idea  of  parting  with  the  fee 
for  a  monetary  or  other  consideration,  and  do  not  embrace  the  con- 
cept of  a  lease.  (San  Pedro  etc.  R.  R.  Co.  v.  Hamilton,  161  Cal.  610, 
37  L.  R.  A.  (N.  S.)  686,  119  Pac.  1073.) 

This  section  does  not  prohibit  the  grant  by  the  state  of  tide-lands 
to  municipal  corporations,  and  such  a  grant  must  be  deemed  to  be 
within  the  general  powers  of  the  legislature.  (Cimpher  v.  City  of 
Oakland,  162  Cal.  87,  121  Pac.  374.) 

Title  to  lands  covered  by  navigable  waters.     See  note,  53  Am.  St. 
Eep.  289. 


I 


571  STATE  INDEBTEDNESS.  Art.  XVI,  §  1 

ARTICLE  XVL 

STATE  INDEBTEDNESS. 

Section  1.  The  legislature  shall  not,  in  any  manner  cre- 
ate any  debt  or  debts,  liability  or  liabilities,  which  shall, 
singly  or  in  the  aggregate  with  any  previous  debts  or  lia- 
bilities, exceed  the  sum  of  three  hundred  thousand  dollars, 
except  in  case  of  war  to  repel  invasion  or  suppress  insur- 
rection, unless  the  same  shall  be  authorized  by  law  for 
some  single  object  or  work  to  be  distinctly  specified  therein 
which  law  shall  provide  ways  and  means,  exclusive  of 
loans,  for  the  payment  of  the  interest  of  such  debt  or  lia- 
bility as  it  falls  due,  and  also  to  pay  and  discharge  the 
principal  of  such  debt  or  liability  within  seventy-five  years 
of  the  time  of  the  contracting  thereof,  and  shall  be  irre- 
pealable  until  the  principal  and  interest  thereon  shall  be 
paid  and  discharged,  and  such  law  may  make  provision  for 
a  sinking  fund  to  pay  the  principal  of  such  debt  or  liability 
to  commence  at  a  time  after  the  incurring  of  such  debt  or 
liability  of  not  more  than  a  period  of  one-fourth  of  the 
time  of  maturity  of  such  debt  or  liability ;  but  no  such  law 
shall  take  effect  until,  at  a  general  election,  it  shall  have 
been  submitted  to  the  people  and  shall  have  received  a 
majority  of  all  the  votes  cast  for  and  against  it  at  such 
election;  and  all  moneys  raised  by  authority  of  such  law 
shall  be  applied  only  to  the  specific  object  therein  stated 
or  to  the  payment  of  the  debt  thereby  created,  and  such 
law  shall  be  published  in  at  least  one  ncAvspaper  in  each 
county,  or  city  and  county,  if  one  be  published  therein 
throughout  the  state  for  three  months  next  preceding  the 
election  at  which  it  is  submitted  to  the  people.  The  legis- 
lature may,  at  any  time  after  the  approval  of  such  law  by 
the  people,  if  no  debt  shall  have  been  contracted  in  pursu- 
ance thereof,  repeal  the  same.  (Amendment  adopted 
November  3,  1908.) 

[ORIGINAL   SECTION.l 
Section  1.     The  legislature  shall  not,  in  any  manner,  create  any 
debt  or  debts,  liability  or  liabilities,  which  shall,  singly  or  in  the 
aggregate  with  any  previous   debts  or  liabilities,  exceed  the  sum 


Art.  XVI,  §  1  CONSTITUTION  OF  1879.  572 

of  three  hundred  thousand  dollars,  except  in  ease  of  war  to  repel 
invasion  or  suppress  insurrection,  unless  the  same  shall  be  author- 
ized by  law  for  some  single  object  or  work  to  be  distinctly  speci- 
fied therein,  which  law  shall  provide  ways  and  means,  exclusive 
of  loans,  for  the  payment  of  the  interest  of  such  debt  or  liability 
as  it  falls  due,  and  also  to  pay  and  discharge  the  principal  of  such 
debt  or  liability  within  twenty  years  of  the  time  of  the  contract- 
ing thereof,  and  shall  be  irrepealable  until  the  principal  and  in- 
terest thereon  shall  be  paid  and  discharged;  but  no  such  law  shall 
take  effect  until,  at  a  general  election,  it  shall  have  been  sub- 
mitted to  the  people  and  shall  have  received  a  majority  of  all  the 
votes  cast  for  and  against  it  at  such  election;  and  all  moneys 
raised  by  authority  of  such  law  shall  be  applied  only  to  the  specific 
object  therein  stated,  or  to  the  payment  of  the  debt  thereby  created 
and  such  law  shall  be  published  in  at  least  one  newspaper  in  each 
county,  or  city  and  county,  if  one  be  published  therein,  through- 
out the  state,  for  three  months  next  preceding  the  election  at 
which  it  is  submitted  to  the  people.  The  legislature  may  at  any 
time  after  the  approval  of  such  law  by  the  people,  if  no  debt  shall 
have  been  contracted  in  pursuance  thereof,  repeal  the  same. 

STATE  INDEBTEDNESS.— The  political  department  of  the  state 
government  is  the  sole  judge  of  the  existence  of  war  or  insurrection. 
(Franklin  v.  State  Board  of  Examiners,  23  Cal.  173;  People  v.  Pa- 
checo,  27  Cal.  175.) 

An  appropriation  for  the  purpose  of  repelling  an  invasion  or  sup- 
pressing insurrection,  reciting  the  existence  of  such  war,  is  conclusive 
evidence  of  its  existence.  (People  v.  Pacheco,  27  Cal.  175;  Eeis  v. 
State,  133  Cal.  593,  65  Pac.  1102.) 

The  Constitution  does  not  impose  any  limitation  upon  the  amount 
of  state  indebtedness  in  case  of  war,  to  repel  invasion  or  suppress 
insurrection.     (Franklin  v.  State  Board  of  Examiners,  23  Cal.  173.) 

This  section  was  intended  to  prevent  the  state  from  running  into 
debt,  and  to  keep  her  expenditures,  except  in  certain  cases,  within 
her  revenues.  These  revenues  may  be  appropriated  in  anticipation  of 
their  receipt  as  effectually  as  when  actually  in  the  treasury.  The  ap- 
propriation of  the  moneys  when  received  meets  the  services  as  they 
are  rendered,  thus  discharging  the  liabilities  as  they  arise,  or  rather 
anticipating  and  preventing  their  existence.  (State  v.  McCauley,  15 
Cal.  429.) 

This  provision  is  an  express  restriction  upon  the  power  of  the  legis- 
lature, and  there  is  no  power  in  the  judiciary  to  set  it  aside,  what- 
ever inconvenience  may  result  from  the  legitimate  application  of  it. 
It  is  not  simply  advisory  to  the  legislature,  but  is  mandatory.  (Nou- 
gues  V.  Douglass,  7  Cal.  65.) 

It  includes  the  necessary  and  ordinary  expenses  of  the  state,  and 
includes  an  expenditure  for  the  erection  of  a  state  capitol.  (Nougues 
V.  Douglass,  7  Cal.  65.) 

This  provision  expressly  prohibits  the  legislature  from  creating  a 
debt  in  any  case  which  shall,  in  the  aggregate  with  previous  debts 
and  liabilities  of  the  state,  exceed  the  sum  of  three  hundred  thousand 


573  STATE  INDEBTEDNESS.  Art.  XVI,  §  1 

dollars,  except  for  the  purposes  and  in  the  manner  herein  provided. 
(People  V.  Johnson,  6  Cal.  499.) 

This  provision  is  not  limited  to  the  power  to  borrow  money,  but 
includes  all  kinds  of  indebtedness  and  an  indebtedness  for  construct- 
ing a  road.     (People  v.  Johnson,  6   Cal.  499.) 

It  does  not  apply  to  counties  or  municipal  corporations.  (Pattison 
V.  Board  of  Suprs.  of  Yuba  County,  13  Cal.  175.) 

This  provision  distinguished  from  the  provision  of  the  charter  of 
San  Francisco  in  Argenti  v.  San  Francisco,  IG  Cal.  255. 

The  act  creating  the  board  of  state  prison  commissioners  is  not  in 
violation  of  this  section,  since  the  sums  to  be  paid  were  to  be  paid  in 
the  future,  and  upon  the  performance  of  future  services,  and  until 
such  services  were  performed  there  was  no  debt  against  the  state. 
(State  V.  McCauley,  15  Cal.  429;  People  v.  Brooks,  16  Cal.  11.) 

An  act  providing  for  the  construction  of  a  state  capitol,  and  only 
authorizing  the  commissioners  to  contract  for  one  hundred  thousand 
dollars  is  not  in  violation  of  this  section.  (Koppikus  v.  State  Capitol 
Commrs.,  16  Cal.  248.) 

An  act  which  appropriates  a  sum  of  money  for  the  future  and  di- 
rects certain  payments  to  be  made  out  of  the  same  at  designated 
periods,  from  year  to  year,  and  which  imposes  a  special  tax  to  meet 
the  same  as  they  become  payable,  is  valid.  (People  v.  Pacheco,  27 
Cal.  175.) 

Indebtedness  which  has  been  authorized  by  the  people,  debts  actu- 
ally paid,  and  current  liabilities  of  the  state  for  which  provision  is 
made  by  appropriation  from  current  revenue,  cannot  be  considered 
in  determining  whether  the  legislature  has  exceeded  the  constitu- 
tional limitation.     (Bickerdike  v.  State,  144  Cal.  681,  78  Pac.  270.) 

The  coyote  bounty  act  did  not  create  any  debt  within  the  meaning 
of  this  section.     (Bickerdike  v.  State,  144  Cal.  681,  78  Pac.  270.) 

Publication  of  act. — In  the  absence  of  a  provision  in  the  ",■?'•■ 
Francisco  sea-wall  act,"  for  tue  publication  required  by  this  section, 
the  duty  to  provide  for  the  publication  devolved  upon  the  governor. 
(Spear  v.  Eeeves,  148  Cal.  501,  83  Pac.  432.) 

In  discharging  the  duty  of  making  the  publication  required  by  this 
section,  it  was  not  necessary  for  the  governor  to  act  personally;  but 
it  was  sufficient  that  he  directed  the  secretary  of  state  to  make  it. 
(Spear  v.  Eeeves,  148  Cal.  501,  83  Pac.  432.) 

It  is  not  necessary  that  the  act  as  published  should  be  officially  at- 
tested.    (Spear  v.  Eeeves,  148  Cal.  501,  83  Pac.  432.) 


Art.  XVII,  §  1  CONSTITUTION  OF  1879.  574 

ARTICLE  XVII. 

LAND  AND  HOMESTEAD  EXEMPTION. 

§  1.     Homesteads. 

§  2.     Land  monopoly. 

§  3.     Lands  granted  only  to  actual  settlers. 

Homesteads. 

Section  1.  The  legislature  shall  protect,  by  law,  from 
forced  sale  a  certain  portion  of  the  homestead  and  other 
property  of  all  heads  of  families. 

HOMESTEAD. — The  word  "homestead"  is  here  used  in  the  popular 
sense,  and  represents  the  dwelling-house  at  which  the  family  resides, 
with  the  usual  appurtenances,  including  outbuildings  of  every  kind 
necessary  and  convenient  for  family  use,  and  land  used  for  the  pur- 
poses thereof.     (Gregg  v.  Bostwick,  33  Cal.  220,  91  Am.  Dec.  637.) 

This  section  does  not  of  itself  create,  nor  does  it  vest,  homestead 
rights  in  persons  falling  within  the  general  description.  It  is  merely 
directory.  An  act  making  the  failure  to  file  a  declaration  of  home- 
stead a  forfeiture  of  the  homestead  right  is  valid.  (Noble  v.  Hook, 
24  Cal.  638.) 

The  Constitution  contemplates  legislation  to  exempt  the  homestead 
from  forced  sale,  but  not  to  restrain  voluntary  alienation.  (Gee  v. 
Moore,  14  Cal.  472.) 

This  provision  is  inoperative  in  itself,  and  looks  to  legislation  to 
determine  how  far  and  in  what  manner  the  homestead  shall  be  pro- 
tected from  forced  sale.     (Carey  v.  Tice,  6  Cal.  625.) 

It  looks  to  the  legislature  to  fix  the  extent  of  the  right  and  the 
mode  of  its  protection,  with  the  limitation  of  the  rights  of  creditors 
therein.     (Beaton  v.  Eeid,  111  Cal.  484,  44  Pac.  167.) 

This  provision  does  not  restrict  the  power  of  the  legislature  to  give 
homesteads  to  heads  of  families  only.  (Hohn  v.  Paulv,  11  Cal.  App. 
724,  106  Pac.  266.) 

The  Constitution  is  based  upon  the  idea  that  the  homestead  is  to  be 
carved  out  of  the  property  of  the  husband,  or  at  least  out  of  the 
common  property.     (Gee  v.  Moore,  14  Cal.  472.) 

If  in  the  country,  the  homestead  may  include  a- garden  or  farm; 
if  in  a  town  or  city,  it  may  include  one  or  more  lots  or  blocks.  It 
need  not  be  compact  in  form,  and  is  not  measured  by  fences  merely. 
The  only  tests  are  use  and  value.  (Gregg  v.  Bostwick,  33  Cal.  220,  91 
Am.  Dec.  637.) 

Statutes  for  the  purpose  of  carrying  out  the  constitutional  com- 
mand as  to  the  preservation  of  the  homestead  for  the  family  are 
remedial,  and  should  be  liberally,  or  at  least  fairly  and  reasonably, 
and  not  strictly,  construed.  (Southwick  v.  Davis,  78  Cal.  504,  21  Pac. 
121.) 

As  to  what  constitutes  a  homestead,  see  Estate  of  Gallagher,  134 
Cal.  96,  66  Pac.  70. 


575  LAND  AND  HOMESTEAD  EXEMPTION.      Art.  XVII,  §§  2,  3 

"What  may  be  'exempt  as  homestead.     See  note,  70  Am.  Dec.  344. 
Who  is  head  of  family  and  what  constitutes  a  family.     See  notes, 

61  Am.  Dec.  586;  70  Am.  St.  Kep.  107. 
For  what   claims   and  credits   homestead  is  liable.     See  note,  45 

Am.  St.  Eep.  383. 
Homestead  exemptions  as  extending  to  premises  used  for  hotel  or 

lodging-house.     See  note  Ann.  Cas.  1913E,  1256. 

Land  monopoly. 

Sec.  2.  The  holding  of  large  tracts  of  land,  unculti- 
vated and  unimproved,  by  individuals  or  corporations,  is 
against  the  public  interest,  and  should  be  discouraged  by- 
all  means  not  inconsistent  with  the  rights  of  private 
property. 

TRACTS  OF  ItAND. — This  section  declares  a  policy  against  the 
holding  of  large  tracts  of  land  uncultivated,  and  this  policy  should 
not  be  limited  by  a  narrow  construction  of  the  Constitution.  (Fulton 
V.  Brannan,  88  Cal.  454,  26  Pac.  506.) 

Lands  granted  only  to  actual  settlers. 

Sec.  3.  Lands  belonging  to  this  state,  which  are  suit- 
able for  cultivation,  shall  be  granted  only  to  actual  set- 
tlers, and  in  quantities  not  exceeding  three  hundred  and 
twenty  acres  to  each  settler,  under  such  conditions  as  shall 
be  prescribed  by  law. 

PUBLIC  LANDS. — The  provision  of  this  section  that  "lands  be- 
longing to  the  state  which  are  suitable  for  cultivation,  shall  be 
granted  only  to  actual  settlers"  operates  on  applications  made  before 
as  well  as  those  made  after  the  Constitution  took  effect.  (Johnson 
V.  Squires,  55  Cal.  103;  Mosely  v.  Torrence,  71  Cal.  318,  12  Pac.  430.) 

This  section  speaks  with  reference  to  the  condition  of  the  land  at 
tlie  initiation  of  proceedings  for  purchase.  (Boggs  v.  Ganeard,  148 
Cal.  711,  84  Pac.  195.) 

An  application  to  purchase  state  lands  made  by  one  not  an  actual 
settler,  before  the  adoption  of  the  new  Constitution,  and  who  had 
made  no  payments  thereon,  conferred  no  right  to  purchase  such  lands 
after  the  adoption  of  the  Constitution.  (Urton  v.  Wilson,  65  Cal.  11, 
2  Pac.  411.) 

A  certificate  of  purchase,  obtained  before  the  adoption  of  the  new 
Constitution,  is  not  impaired  by  this  section.  (Miller  v.  Byrd,  90 
Cal.  150,  27  Pac.  51.) 

"Suitable  for  cultivation." — The  phrase,  "lands  belonging  to  the 
state  which  are  suitable  for  cultivation,"  includes  all  of  its  lands 
which  are  ready  for  occupation,  and  which,  by  ordinary  farming  pro- 
cesses, are  fit  for  agricultural  purposes.  Thus  swamp-lands  may  be 
suitable .  for   cultivation.     (Fulton   v.    Brannan,   88   Cal.   454,   26   Pac. 


Art.  XVII,  §  3  CONSTITUTION  OF  1879.  576 

506;  Goldberg  v.  Thompson,  96  Cal.  117,  30  Pac.  1019;  McNee  v. 
Lynch,  88  Cal.  519,  26  Pac.  508;  McDonald  v.  Taylor,  89  Cal.  42,  26 
Pac.  595;  Belcher  v.  Farren,  89  Cal.  73,  26  Pac.  791;  Dewar  v.  Euiz, 
89  Cal.  385,  26  Pac.  832;  Manley  v.  Cunningham,  72  Cal.  236,  13  Pac. 
622.) 

The  words  "suitable  for  cultivation"  mean  all  lands  ready  for  oc- 
cupation and  which  by  ordinary  farm  processes  are  fit  for  agricul- 
tural purposes.     (Robinson  v.  Eberhart,  148  Cal.  495,  83  Pac.  452.) 

It  is  a  question  of  fact  whether  state  land  is  suitable  or  unsuitable 
for  cultivation.     (Robinson  v.  Eberhart,  148  Cal.  495,  83  Pac.  452.) 

Desert  land  is  not  suitable  for  cultivation,  although  it  might  be  de- 
veloped by  boring  artesian  wells.  (Eobinson  v.  Eberhart,  148  Cal. 
495,  83  Pac.  452.) 

The  fact  that  the  land  is  in  most  places  heavily  covered  with  red- 
wood timber  and  brush,  that  it  would  not,  when  cleared,  produce  ordi- 
nary agricultural  crops  in  average  quantities,  and  that  it  is  more 
valuable  for  timber  than  for  agriculture,  does  not  render  it  unsuitable 
for  cultivation.     (Jacobs  v.  Walker,  90  Cal.  43,  27  Pac.  48.) 

Where  some  portion  of  each  subdivision  is  suitable  for  cultivation, 
the  land  cannot  be  purchased  by  one  not  a  settler.  (Sanford  v.  Max- 
well, 3  Cal.  App.  242,  84  Pac.  1000.) 

The  definition  of  lands  suitable  for  cultivation  contained  in  section 
3495  of  the  Political  Code  cannot  be  deemed  to  be  exclusive,  as  that 
would  render  the  section  unconstitutional.  (Sanford  v.  Maxwell,  3 
Cal.  App.  242,  84  Pac.  1000.) 

A  tract  of  land  one-third  of  which  as  a  whole  is  suitable  for  culti- 
vation can  only  be  sold  to  an  actual  settler.  (Sanford  v.  Maxwell,  3 
Cal.  App.  242,  84  Pac.  1000.) 

The  words  "suitable  for  cultivation"  mean  all  tracts  of  land  on. 
which  there  is  arable  or  tillable  land  sufficient,  with  the  use  of  other 
lands  for  pasture  or  otherwise,  to  furnish  a  permanent  support  for  the 
settler.     (Sanford  v.  Maxwell,  2  Cal.  App.  242,  84  Pac.  1000.) 

Actual  settlers. — An  actual  settler  is  one  who  establishes  himself 
upon  the  land,  or  fixes  his  residence  upon  it,  to  take  possession  for 
his  exclusive  occupancy  and  use,  with  a  view  of  acquiring  title  to  it 
by  purchase  from  the  state.  (Gavitt  v.  Mohr,  68  Cal.  506,  10  Pac. 
337.) 

Under  this  section  a  claimant  to  purchase  state  lands  which  are 
suitable  for  cultivation  must  be  at  the  time  of  his  application  an 
actual  settler  thereon.     (Gavitt  v.  Mohr,  68  Cal.  506,  10  Pac.  337.) 

The  fact  that  an  applicant  living  upon  swamp-land  suitable  for  cul- 
tivation removed  his  family  therefrom  temporarily,  because  of  ill 
health  of  a  member  of  his  family,  does  not  show  nor  tend  to  show 
that  he  was  not  an  actual  settler.  (Maddux  v.  Brown,  91  Cal.  523, 
27  Pac.  771.) 

Intervention. — An  actual  settler  has  a  right  to  intervene  in  a  con- 
test of  the  right  to  purchase  before,  but  not  after,  judgment.  (Smith 
V.  Roberts,  1  Cal.  App.  148,  81  Pac.  1026.) 

A  person  who  has  made  application  to  purchase  land,  and  whose 
application  has  been  rejected,  cannot  intervene  in  a  contest  between 
other  claimants  and  raise  the  point  that  the  parties  had  agreed  to 
divide  the  land  in  order  to  evade  the  provision  of  this  section.  (Youle 
V.  Thomas,  146  Cal.  537,  80  Pac.  714.) 


577i  AMENDING   THE   CONSTITUTION.      Art.  XVIII,  §  1 

ARTICLE  XVIII. 

AMENDING  AND  EEVISING  THE  CONSTITUTION. 

§  1.     Proposal   of   amendments — Submission   to   vote. 
§  2.     Eevision — Convention   for. 

Proposal  of  amendments — Submission  to  vote. 

Section  1.  Any  amendment  or  amendments  to  this  Con- 
stitution may  be  proposed  in  the  senate  or  assembly,  and 
if  two-thirds  of  all  the  members  elected  to  each  of  the  two 
houses  shall  vote  in  favor  thereof,  such  proposed  amend- 
ment or  amendments  shall  be  entered  in  their  journals, 
with  the  yeas  and  nays  taken  thereon ;  and  it  shall  be  the 
duty  of  the  legislature  to  submit  such  proposed  amend- 
ment or  amendments  to  the  people  in  such  manner,  and  at 
such  time,  and  after  such  publication,  as  may  be  deemed 
expedient.  Should  more  amendments  than  one  be  submit- 
ted at  the  same  election  they  shall  be  so  prepared  and  dis- 
tinguished, by  numbers  or  otherwise,  that  each  can  be  voted 
on  separately.  If  the  people  shall  approve  and  ratify  such 
amendment  or  amendments,  or  any  of  them,  by  a  majority 
of  the  qualified  electors  voting  thereon,  such  amendment 
or  amendments  shall  become  a  part  of  this  Constitution. 

CONSTITUTIONAL  AMENDMENTS.— A  general  act  as  to  the 
submission  of  constitutional  amendments  is  valid;  and  it  is  not  nece.°-- 
sary  that  an  amendment  be  submitted  specially  by  the  legislature 
proposing  it.  (Martin  v.  Board  of  Election  Commrs.,  126  Cal.  404, 
58  Pac.  932.) 

When  the  Political  Code  provides  for  the  certification  of  proposed 
constitutional  amendments  by  the  secretary  of  state  to  the  county 
clerks  "not  less  than  twenty-five  days  before  election,"  and  provides 
for  the  printing  of  such  amendments  upon  the  ballots,  it  is  to  be 
presumed  that  fhey  are  to  be  voted  upon  at  the  next  general  election 
after  the  proposal  of  the  amendment,  and  this  section  is  sufficiently 
complied  with.  (People  v.  Curry,  130  Cal.  82,  62  Pac.  516,  Temple, 
J.,  and  Harrison  J.,  dissenting.) 

The  Constitution  does  not  permit  the  legislature  to  propose  an 
amendment  that  will  not  upon  its  adojjtion  by  the  people  become  an 
effective  part  of  the  Constitution;  nor  one  which,  if  ratified  will  take 
effect  only  at  the  will  of  other  persons,  or  upon  the  approval  of  such 
other  persons,  or  on  some  specified  act  or  condition.  (Livermore  v. 
Waite,  102  Cal.  113,  25  L.  E.  A.  312,  36  Pac.  424.) 

The  Constitution  can  neither  be  revised  nor  amended,  except  in  the 
manner  prescribed  by  itself,  and  the  power  conferred  upon  the  legisla- 
Constitution — 37 


Art.  XVIII,  §  2        CONSTITUTION  OF  1879.  578 

ture  by  this  section  must  be  strictly  construed.     (Livermore  v.  Waite, 
102  Cal.  113,  25  L.  E.  A.  312,  36  Pac.  424,) 

The  time  at  which  a  proposed  amendment  to  the  Constitution  is  to 
be  submitted  to  the  people  for  ratification  must  be  fixed  by  an  act 
of  the  legislature,  approved  by  the  governor  in  the  same  manner  as 
other  acts.     (Hatch  v.  Stoneman,  66  Cal.  632,  6  Pac.  734.) 

An  amendment  need  not  be  entered  in  the  journals  at  length,  but 
it  is  sufficient  if  entered  by  identifying  reference  to  the  title  of  the 
amendment.  (Thomason  v.  Ruggles,  69  Cal.  465,  11  Pac.  20;  Oakland 
Pav.  Co.  V.  Tompkins,  72  Cal.  5,  1  Am.  St.  Eep.  17,  12  Pac.  801;  Thom- 
ason V.  Ashworth,  73  Cal.  73,  14  Pac.  615.  But  see  Oakland  Pav.  Co. 
V.  Hilton,  69  Cal.  479,  11  Pac.  3.) 

The  certificate  of  the  secretary  of  state  showing  the  adoption  of  an 
amendment  to  the  Constitution  is  conclusive  of  the  fact  that  the  same 
has  been  duly  ratified.  (Kingsbury  v.  Nye,  9  Cal.  App.  574,  99  Pac. 
985.) 

Entry  of  amendments  in  journal  of  the  legislature.     See  notes,  1 

Am.  St.  Eep.  21;  6  E.  C.  L.,  §  20,  p.  29, 
Mode   of  entering   proposed   constitutional   amendments   on   legis- 
lative journals.     See  note,  3  Ann.  Cas.  756. 
Necessity   of   approval  by    executive   of   proposed   constitutional 
amendment.     See  notes,  4  Ann.  Cas.  703;  6  E.  C.  L.,  §  21,  p.  29. 
Provision  of  Constitution  for  amendment  thereof  as  mandatory  or 
directory.     See  note,  15  Ann.  Cas.  786. 

Revision — Convention  for. 

Sec.  2.  Whenever  two-thirds  of  the  members  elected  to 
each  branch  of  the  legislature  shall  deem  it  necessary  to 
revise  this  Constitution,  they  shall  recommend  to  the  elec- 
tors to  vote  at  the  next  general  election  for  or  against  a 
convention  for  that  purpose,  and  if  a  majority  of  the  elec- 
tors voting  at  such  election  on  the  proposition  for  a  con- 
vention shall  vote  in  favor  thereof,  the  legislature  shall,  at 
its  next  session,  provide  by  law  for  calling  the  same.  The 
convention  shall  consist  of  a  number  of  delegates  not  to 
exceed  that  of  both  branches  of  the  legislature,  who  shall 
be  chosen  in  the  same  manner,  and  have  the  same  qualifi- 
cations, as  members  of  the  legislature.  The  delegates  so 
elected  shall  meet  within  three  months  after  their  election 
at  such  place  as  the  legislature  may  direct.  At  a  special 
election  to  be  provided  for  by  law,  the  Constitution  that 
may  be  agreed  upon  by  such  convention  shall  be  submitted 
to  the  people  for  their  ratification  or  rejection,  in  such 
manner  as  the  convention  may  determine.     The  returns  of 


» 


579  AMENDING   THE   CONSTITUTION.      Art.  XVIII,  §  2 

such  election  shall,  in  such  manner  as  the  convention  shall 
direct,  be  certified  to  the  executive  of  the  state,  who  shall 
call  to  his  assistance  the  controller,  treasurer,  and  secre- 
tary of  state,  and  compare  the  returns  so  certified  to  him; 
and  it  shall  be  the  duty  of  the  executive  to  declare,  by  his 
proclamation,  such  Constitution,  as  may  have  been  ratified 
by  a  majority  of  all  the  votes  cast  at  such  special  election, 
to  be  the  Constitution  of  the  state  of  California. 


Art.  XIX,  §  1  CONSTITUTION  OF  1879.  580 

ARTICLE  XIX. 

CHINESE. 

§  1.  Protection  from  alien  paupers,  etc. 

§  2.  Corporations  prohibited  from  hiring  Chinese. 

§  3.  Public  works,  Chinese  not  to  be  employed  on. 

§  4,  Coolieism  prohibited — Eemoval  of  Chinese. 

Protection  from  alien  paupers,  etc. 

Section  1.  The  legislature  shall  prescribe  all  necessary 
regulations  for  the  protection  of  the  state,  and  the  coun- 
ties, cities,  and  towns  thereof,  from  the  burdens  and  evils 
arising  from  the  presence  of  aliens  who  are  or  may  become 
vagrants,  paupers,  mendicants,  criminals,  or  invalids  af- 
flicted with  contagious  or  infectious  diseases,  and  from 
aliens  otherwise  dangerous  or  detrimental  to  the  well-being 
or  peace  of  the  state,  and  to  impose  conditions  upon  which 
such  persons  may  reside  in  the  state,  and  to  provide  the 
means  and  mode  of  their  removal  from  the  state ,  upon 
failure  or  refusal  to  comply  with  such  conditions ;  pro- 
vided, that  nothing  contained  in  this  section  shall  be  con- 
strued to  impair  or  limit  the  power  of  the  legislature  to 
pass  such  police  laws  or  other  regulations  as  it  may  deem 
necessary. 

POLICE  REGULATIONS.— A  state  has  the  power  to  exclude  from 
its  limits  paupers,  vagabonds,  and  criminals,  or  sick,  diseased,  infirm, 
and  disabled  persons,  who  are  liable  to  become  a  public  charge,  or  to 
admit  them  only  on  such  terms  as  will  prevent  the  state  from  being 
burdened  with  their  support.  (State  v.  Steamship  Constitution,  42 
Cal.  578,  10  Am.  Eep.  303.) 

The  power  to  exclude  from  the  limits  of  a  state  persons  not  pau- 
pers, etc.,  is  a  regulation  of  commerce,  and  cannot  be  exercised  by  the 
state.  (State  v.  Steamship  Constitution,  42  Cal.  578,  10  Am.  Eep. 
303.) 

An  act  giving  the  horticultural  commissioners  power  to  abate  a  nui- 
sance caused  by  insect  pests  in  orchards,  etc.,  is  authorized  by  this 
section.  (Los  Angeles  Co.  v.  Spencer,  126  Cal.  670,  77  Am.  St.  Eep. 
217,  59  Pac.  202;  Eiverside  Co.  v.  Butcher,  133  Cal.  324,  65  Pac.  745.) 

An  act  requiring  all  children  attending  the  public  schools  to  be 
vaccinated  is  authorized  by  this  section.  (Abeel  v.  Clark,  84  Cal. 
226,  24  Pac.  383.) 

An  act  levying  upon  each  person  of  the  Mongolian  race  a  monthly 
license  tax  of  two  dollars  and  fifty  cents  for  working  the  mines,  or 
for  prosecuting  any  business,  is  in  violation  of  the   commerce  clause 


581  CHINESE.  Art.  XIX,  §§  2-4 

of  the  United  States  Constitution.  (Lin  Sing  v.  Washburn,  20  Cal. 
534.) 

An  act  forbidding  the  landing  of  lewd  or  debauched  women  within 
the  state  is  valid.     (Ex  parte  Ah  Fook,  49  Cal.  402.)^ 

An  act  requiring  all  fruit  shipped  to  be  labeled  with  the  locality  in 
which  it  is  grown  is  not  a  valid  exercise  of  the  power  given  by  this 
section.  (Ex  parte  Hayden,  147  Cal.  649,  1(JQ  Am.  St.  Rep.  183,  1  L. 
K.  A.  (N.  S.)  184,  82  Pac.  315.) 

Corporations  prohibited  from  hiring-  Chinese. 

Sec.  2.  No  corporation  now  existing  or  hereafter 
formed  under  the  laws  of  this  state  shall,  after  the  adop- 
tion of  this  Constitution,  employ,  directly  or  indirectly,  in 
any  capacity,  any  Chinese  or  Mongolian.  The  legislature 
shall  pass  such  laws  as  may  be  necessary  to  enforce  this 
provision. 

CHINESE  liABOR.— This  provision  of  the  Constitution  is  in  con- 
flict with  the  treaty  between  the  United  States  and  China,  and  is 
void.  (In  re  Parrott,  6  Sawy.  349,  1  Fed.  481.  See,  also.  Baker  v. 
City  of  Portland,  5  Sawy.  566,  Fed.  Cas.  No.  777,  3  Pac.  Coast  Law 
J.  469;  Chapman  v.  Toy  Long,  4  Sawy.  28,  Fed.  Cas.  No.  2610,  1  Morr. 
Min.  Eep.  497;  Ex  parte  Ah  Cue,  101  Cal.  197,  35  Pac.  556.) 

Public  works,  Chinese  not  to  be  employed  on. 

Sec.  3.  No  Chinese  shall  be  employed  on  any  state, 
county,  municipal,  or  other  public  Avork,  except  in  punish- 
ment for  crime. 

CHINESE  EMPLOYMENT.— As  to  the  validity  of  this  provision, 
see  Baker  v.  City  of  Portland,  5  Sawy.  566,  Fed.  Cas.  No.  777,  3  Pac. 
Coast  Law  J.  469. 

Coolieism  prohibited — Removal  of  Chinese. 

Sec.  4.  The  presence  of  foreigners  ineligible  to  become 
citizens  of  the  United  States  is  declared  to  be  dangerous 
to  the  well-being  of  the  state,  and  the  legislature  shall  dis- 
courage their  immigration  by  all  the  means  within  its 
power.  Asiatic  coolieism  is  a  form  of  human  slavery,  and 
is  forever  prohibited  in  this  state,  and  all  contracts  for 
coolie  labor  shall  be  void.  All  companies  or  corporations, 
whether  formed  in  this  country  or  any  foreign  country, 
for  the  importation  of  such  labor,  shall  be  subject  to  such 
penalties   as   the   legislature   may   prescribe.     The    legisla- 


Art.  XIX,  §  4  CONSTITUTION  OF  1879.  582 

ture  shall  delegate  all  necessary  power  to  the  incorporated 
cities  and  towns  of  this  state  for  the  removal  of  Chinese 
without  the  limits  of  such  cities  and  towns,  or  for  their 
location  within  prescribed  portions  of  those  limits,  and  it 
shall  also  provide  the  necessary  legislation  to  prohibit  the 
introduction  into  this  state  of  Chinese  after  the  adoption 
of  this  Constitution.  This  section  shall  be  enforced  by  ap- 
propriate legislation. 

IMMIGRATION.  —  As  to  the  validity  of  legislation  excluding 
foreigners,  see  State  v.  Steamship  Constitution,  42  Cal.  578,  10  Am. 
Eep.  303;  Lin  Sing  v.  Washburn,  20  Cal.  534;  Ex  parte  Ah  Fook,  49 
Cal.  402;  In  re  Parrott,  6  Sawy.  349,  1  Fed.  481;  Baker  v.  City  of 
Portland,  5  Sawy.  566,  Fed.  Cas.  No.  777,  3  Pae.  Coast  Law  J.  469; 
Ho  Ah  Kow  V.  Nunan,  5  Sawy.  552,  Fed.  Cas.  No  6546,  3  Pac.  Coast  Law 
J.  415. 


583  MISCELLxVNEOUS  SUBJECTS.  Art.  XX,  §  1 

ARTICLE  XX. 

MISCELLANEOUS   SUBJECTS. 

§     1.  Seat  of  government. 

§     2.  Dueling,  disabilities  arising  from. 

§     3.  Oath  of  office. 

§     4.  Election  and  appointment  of  officers  and  commissioners. 

S     5.  Fiscal  year. 

§     6.  Suits  against  state. 

§     7.  Marriage  contracts,  validity  of. 

§     8.  Separate  property  of  husband  and  wife. 

§     9.  Perpetuities  not  allowed. 

§  10.  Disqualification  for  office  by  giving  or  taking  bribe. 

§  11.  Exclusion   from   office,   jury,   and   right   of   suffrage   of   certain 

]iersons — Protection  of  right  of  suffrage. 

§   12.  T      iilence,  when  absence  not  to  affect. 

§  13.  Plurality  vote  to  elect. 

§  14.  State   board   of  health. 

§  15.  Mechanic's  lien. 

§   16.  Term  of  office,  duration  of. 

§   17.  Eight  hours  a  legal  day's  labor. 

§  17^.  Minimum  wage. 

§   18.  Sex  not  a  disqualification  for  business. 

§  19.  Payment  of  expenses  of  convention. 

§  20.  Election  of  officers — Term,  when  commences. 

§  21.  Laws  to  remain  in  force. 

Seat  of  government. 

Section  1.  The  city  of  Sacramento  is  hereby  declared 
to  be  the  seat  of  government  of  this  state,  and  shall  so 
remain  until  changed  by  law ;  but  no  law  changing  the 
seat  of  government  shall  be  valid  or  binding  unless  the 
same  be  approved  and  ratified  by  a  majority  of  the  quali- 
fied electors  of  the  state  voting  therefor  at  a  general  state 
election,  under  such  regulations  and  provisions  as  the  leg- 
islature, by  a  two-thirds  vote  of  each  house,  may  provide, 
submitting  the  question  of  change  to  the  people. 

SEAT  OF  GOVERNMENT. — This  section  is  subject  to  amendment 
in  the  same  manner  as  any  other  part  of  the  Constitution.  (Liver- 
more  v.  Waite,  102  Cal.  113,  2.5  L.  K.  A.  312,  36  Pac.  424.) 

The  proposed  constitutional  amendment  of  1893  to  change  the  seat 
of  government  to  San  Jose  was  held  invalid  and  ineffective,  its  op- 
eration being  limited  upon  the  uncertain  conditions  of  the  donation 
to  the  state  of  not  less  than  ten  acres  of  land,  and  one  million  dollars 
in  money,  and  the  approval  by  the  governor,  secretary  of  state,  and 
attorney  general  of  the  site  so  donated.  (Livermore  v.  Waite,  lOi 
Cal.  113,  25  L.  R.  A.  312,  36  Pac.  424.) 


Art.  XX,  §§2, 3       CONSTITUTION  OF   1879.  584 

An  act  making  Vallejo  the  permanent  seat  of  government,  and  pro- 
viding that  one  Vallejo  should  give  a  bond  for  the  performance  of 
the  proposition  which  he  had  submitted  to  the  legislature,  and  should 
provide  a  statehouse,  and  failing  to  do  so,  "then  this  act  to  be  void," 
is  constitutional,  and  operated  to  change  the  seat  of  government  and 
cannot  be  defeated  by  the  breach  of  the  condition.  (People  v.  Big- 
ler,  5  Cal.  23.) 

Dueling-,  disabilities  arising  from. 

Sec.  2.  Any  citizen  of  this  state  who  shall,  after  the 
adoption  of  this  Constitution,  fight  a  duel  with  deadly  weap- 
ons, or  send  or  accept  a  challenge  to  fight  a  duel  with  deadly 
weapons,  either  within  this  state  or  out  of  it,  or  who  shall 
act  as  second,  or  knowingly  aid  or  assist  in  any  manner 
those  thus  offending,  shall  not  be  allowed  to  hold  any 
office  of  profit,  or  to  enjoy  the  right  of  suffrage  under  this 
Constitution. 

Oath  of  office. 

Sec.  3.  Members  of  the  legislature,  and  all  officers,  ex- 
ecutive and  judicial,  except  such  inferior  officers  as  may 
be  by  law  exempted,  shall,  before  they  enter  upon  the 
duties  of  their  respective  offices,  take  and  subscribe  the 
following  oath  or  affirmation : 

"I  do  solemnly  swear  (or  affirm,  as  the  case  may  be), 
that  I  will  support  the  Constitution  of  the  United  States 
and  the  Constitution  of  the  state  of  California,  and  that  I 

will  faithfully  discharge  the  duties  of  the  office  of  , 

according  to  the  best  of  my  ability." 

And  no  other  oath,  declaration,  or  test  shall  be  required 
as  a  qualification  for  any  office  or  public  trust. 

OATH  OF  OFFICE. — The  terms  "office"  and  "public  trust"  have  re- 
lation to  such  duties  and  responsibilities  as  are  of  a  public  nature. 
(Ex  parte  Yale,  24  Cal.  241,  85  Am.  Dec.  62.) 

An  attorney  at  law  does  not  hold  an  "office"  or  "public  trust"  with- 
in the  meaning  of  this  section.  (Ex  parte  Yale,  24  Cal.  241,  85  Am. 
Dec.  62;  Cohen  v.  Wright,  22  Cal.  293.) 

This  provision  does  not  prohibit  the  legislature  from  prescribing 
an  oath  to  such  officers  in  a  different  form  of  words  from  that  herein 
used,  if  the  meaning,  object,  and  intent  of  the  section  be  not  vio- 
lated.    (Cohen  v.  Wright,  22   Cal.  293.) 

It  is  competent  for  the  legislature  to  make  the  taking  of  the  oath 
of  office  a  condition  subsequent.     (Ball  v.  Kenfield.  55  Cal.  320.) 


I 


585  MISCELLANEOUS   SUBJECTS.  Art.  XX,  §  4 

The  legislature  can  neither  increase  nor  diminish  the  qualifications 
■which  the  Constitution  has  prescribed  for  eligibility  to  any  offices  cre- 
ated by  that  instrument,  but  may  prescribe  any  qualifications  for 
offices   created   by   the   legislature.     (Sheehan   v.   Scott,   145   Cal.   684, 

79  Pac.  330.) 

It  is  to  be  presumed  that  officers  will  qualify  within  a  reasonable 
time  consistent  with  their  duties.     (Brodie  v.  Campbell,  17  Cal.  11.) 

The  provisions  of  the  Purity  of  Election  Law  requiring  a  success- 
ful candidate  for  office  to  support  his  statement  of  election  expenses 
by  his  oath  as  a  prerequisite  to  his  right  to  take  office,  is  in  violation 
of  this  section,  as  they  impose  an  oath  or  test  substantially  different 
from  that  made  exclusive  by  the  construction.  (Bradley  v.  Clark, 
133  Cal.  196,  65  Pac.  395.) 

The  requirement  of  the  primary  election  law  that  a  candidate  file' 
with  his  nomination  papers  an  affidavit  as  to  his  party  affiliations  is 
not  in  violation  of  the  section  of  the  Constitution,  which  applies  only 
to  persons  who  have  been  elected  or  appointed  to  office;  it  is  a  reason- 
able test,  authorized  by  section  2%  of  article  II.  (Socialist  Party  v. 
Uhl,   155   Cal.   776,   103  Pac.   181.) 

Election  and  appointment  of  officers  and  commissioners. 

Sec.  4.  All  officers  or  commissioners  whose  election  or 
appointment  is  not  provided  for  by  this  Constitution,  and 
all  officers  or  commissioners  whose  offices  or  duties  may 
hereafter  be  created  by  law,  shall  be  elected  by  the  people, 
or  appointed,  as  the  legislature  may  direct. 

ELECTION  AND  APPOINTMENT  OF  OFFICERS.— This  section, 
does  not  prevent  the  legislature  itself  from  electing  an  officer  created- 
by  it.     (People  v.  Langdon,  8  Cal.  1.) 

The  words  "elect"  and  "appoint"  are  used  synonymously  in  the  Con- 
stitution.    (People  V.  Langdon,  8  Cal.  1.) 

This  section  does  not  authorize  the  legislature  to  exercise  the  power 
of  appointment  to  office,  if  that  is  essentially  an  executive  function, 
under  section  1,  article  III,  of  the  Constitution.     (People  v.  Freeman, 

80  Cal.  233,  13  Am.  St.  Kep.  122,  22  Pac.  173.) 

The  Constitution  does  not  prohibit  the  legislature  from  conferring 
on  a  voluntary  association  of  persons,  who  are  not  citizens  of  the 
United  States,  nor  electors  of  the  city,  the  power  to  elect  a  person  to 
fill  an  office  created  by  the  legislature.     (In  re  Bulger,  45  Cal.  553.) 

The  provision  of  the  act  regulating  the  practice  of  medicine  and 
surgery,  that  the  board  of  examiners  shall  be  appointed  by  certain 
medical  societies  is  authorized  by  this  section.  (Ex  parte  Geiino^ 
143  Cal.  412,  66  L.  E.  A.  249,  77  Pac.  166.) 

Under  this  section  officers  may  be  appointed  by  the  legislature  it- 
self, or  the  duty  of  appointment  may  be  delegated  and  imposed  upon 
some  other  person  or  body.  (Ex  parte  Gerino,  143  Cal.  412,  66 
L.  R.  A.  249,  77  Pac.  166.) 


Art.  XX,  §§5-8       CONSTITUTION  OF   1879.  586 

Fiscal  year. 

Sec.  5.  The  fiscal  year  shall  commence  on  the  first  day 
of  July. 

FISCAL  YEAR.— The  fiscal  year  ends  with  the  thirtieth  day  of 
June.     (Rollins  v.  Wright,  93  Cal.  395,  29  Pac.  58.) 

An  act  legalizing  assessments  for  taxes  for  the  fiscal  year  ending 
on  the  first  day  of  March  is  not  void  because  the  Constitution  pro- 
vides that  the  fiscal  year  shall  commence  on  the  first  day  of  July,  but 
the  word  "fiscal"  in  the  act  may  be  treated  as  surplusage.  (People 
V.  Todd,  23  Cal.  181.) 

Suits  agfainst  state. 

Sec.  6.  Suits  may  be  brought  against  the  state  in  such 
manner  and  in  such  courts  as  shall  be  directed  by  law. 

SUITS  AGAINST  THE  STATE.— Where  an  action  is  properly 
brought  against  the  state  the  attorney  general  has  power  to  appear, 
although  the  state  has  not  been  regularly  summoned.  (California  & 
Northern  Ey.  v.  State,  1  Cal.  App.  142,  81  Pac.  971.) 

Even  prior  to  the  amendment  to  section  1240  of  the  Code  of  Civil 
Procedure,  a  suit  might  be  maintained  against  the  state  to  condemn 
lands  belonging  to  it.  (California  &  Northern  Ry.  v.  State,  1  Cal. 
App.  142,  81  Pac.  971.) 

This    provision    does    not    extend    to    suits    against    municipalities. 
(Goldtree  v.  San  Diego,  8  Cal.  App.  505,  97  Pac.  216.)  . 
Actions  against  states.     See  note,  12  Am.  Dec.  517. 

Marriage  contracts,  validity  of. 

Sec.  7.  No  contract  of  marriage,  if  otherwise  duly 
made,  shall  be  invalidated  for  want  of  conformity  to  the 
requirements  of  any  religious  sect. 

Separate  property  of  husband  and  wife. 

Sec.  8.  All  property,  real  and  personal,  owned  by  either 
husband  or  wife  before  marriage,  and  that  acquired  by 
either  of  them  afterward  by  gift,  devise,  or  descent,  shall 
be  their  separate  property. 

SEPARATE  PROPERTY.— The  word  "separate"  neither  enlarges 
nor  limits  her  right  to  the  property  mentioned,  but  merely  distin- 
guishes it  from  her  common  property.  (Dow  v.  Gould  &  Curry  etc. 
Min.  Co.,  31  Cal.  629.) 

The  last  clause  of  the  corresponding  section  of  the  old  Constitu- 
tion refers  only  to  the  disabilities  under  which  the  wife  labored  at 
common  law  by  reason  of  coverture.  (Dow  v.  Gould  &  Curry  etc. 
Min.  Co.,  31  Cal.  629.) 


i 


587  MISCELLANEOUS   SUBJECTS.  Art.  XX,  §  9 

In  the  absence  of  any  agreement  the  husband  acquires  no  interest 
in  the  separate  projierty  of  the  wife  bj'  bestowing  labor  upon  it. 
(Lewis  V.  Johns,  24  Cal.  98,  85  Am.  Dec.  49.) 

All  property  which  can  be  shown  b}'  satisfactory  testimony  to  be- 
long to  the  separate  estate  of  the  wife,  whether  real,  personal,  or 
mixed,  and  all  the  rents,  issues  and  profits  thereof,  are  sacred  to  the 
use  and  enjoyment  of  the  wife,  and  cannot  be  held  to  answer  for 
the  debts  of  the  husband.  (Lewis  v.  Johns,  24  Cal.  98,  85  Am.  Dec. 
49.) 

The  term  "separate  property"  is  used  in  its  common-law  sense,  and 
by  that  law,  "separate  property"  means  an  estate  held,  both  in  its 
use  and  title,  for  the  exclusive  benefit  of  the  wife.  To  give  the  hus- 
band or  his  creditors  any  claim  upon  the  separate  property  of  the 
wife  is  unconstitutional.  (George  v.  Eansom,  15  Cal.  322,  76  Am. 
Dec.  490.) 

An  act  requiring  a  deed  conveying  the  separate  property  of  the 
wife  to  be  signed  by  the  husband  is  not  unconstitutional.  (Dow  v. 
Gould  &  Curry  etc.  Min.  Co.,  31  Cal.  629.) 

As  to  whether  property  devised  in  pursuance  of  a  contract  is  separate 
property,  see  Bell  v.  Wyman,  147  Cal.  514,  82  Pac.  39. 

What  words  in  a  will  vest  estate  in  wife  as  separate  property. 
See  note,  39  Am.  Dec.  773. 

Lands  given  by  the  sovereign  to  either  spouse  as  separate  prop- 
erty.    See  notes,  16  Am.  Dec.  186;  96  Am.  St.  Eep.  916. 

Statutes    designating   separate    property    of   wife.     See   note,    76 
Am.  Dec.  366. 

Perpetuities  not  allowed. 

Sec.  9.  No  perpetuities  shall  be  allowed  except  for  elee- 
mosynary purposes. 

PERPETUITIES. — Trusts  for  perpetual  charitable  uses  are  not  in 
conflict  with  this  section.     (Estate  of  Hinckley,  58  Cal.  457.) 

The  term  "eleemosynary"  is  not  confined  to  almsgiving  or  charity 
shown  exclusively  to  the  poor  but  includes  all  charitable  purposes, 
including  schools,  as  well  as  asylums,  hospitals,  and  religious  institu- 
tions. (People  V.  Cogswell,  113  Cal.  129,  35  L.  E.  A.  269,  45  Pac. 
270.) 

A  trust  for  the  perpetual  care  of  a  burial  plot  is  in  violation  of 
this  provision.  (Estate  of  Gay,  138  Cal.  552,  94  Am.  St.  Eep.  70, 
71  Pac.  707.) 

"Eleemosynary"  as  used  in  the  Constitution  is  synonymous  with 
charitable,  as  the  latter  word  is  used  and  understood  in  treatises  and 
decisions  upon  the  subject  of  trusts.  (Estate  of  Sutro,  155  Cal.  727, 
102  Pac.  920.) 

After  the  will  has  been  merged  in  the  decree  of  distribution,  it  is 
too  late  to  urge  that  it  creates  an  illegal  perpetuity.  (Kauffman  v. 
Foster,  3  Cal.  App.  741,  86  Pac.  1108.) 

Eule  against  perpetuities.     See  note,  49  Am.  St.  Eep.  117. 


Art.  XX,  §§  10-12     CONSTITUTION  OF  1879.  588 

Perpetuities  which  are  forbidden  in  the  United  States.  See  note, 
90  Am.  Dec.  101. 

Trust  of  indefinite  duration  for  maintenance,  repair,  etc.,  of  resi 
dence  or  homestead  as  offending  against  the  rule  against  per- 
petuities.    See  note,  Ann.  Cas.  1914B,  551. 

Disqualification  for  office  by  giving  or  taking  bribe. 

Sec.  10.  Every  person  shall  be  disqualified  from  hold- 
ing any  office  of  profit  in  this  state  who  shall  have  been 
convicted  of  having  given  or  offered  a  bribe  to  procure  his 
election  or  appointment. 

Exclusion  from  office,  jury,  and  right  of  suffrag-e  of  certain 
persons — Protection  of  right  of  suffrage. 

Sec.  11.  Laws  shall  be  made  to  exclude  from  office, 
serving  on  juries,  and  from  the  right  of  suffrage,  persons 
convicted  of  bribery,  perjury,  forgery,  malfeasance  in 
office,  or  other  high  crimes.  The  privilege  of  free  suffrage 
shall  be  supported  by  laws  regulating  elections  and  prohib- 
iting, under  adequate  penalties,  all  undue  influence  thereon 
from  power,  bribery,  tumult,  or  other  improper  practice. 

BRIBERY. — Where  a  candidate  for  office  publicly  pledges  himself 
before  the  election  to  perform  the  duties  of  the  office  for  less  than 
the  compensation  established  by  law,  and  by  reason  thereof  a  suffi- 
-cient  number  of  voters  were  induced  to  vote  for  him  to  secure  hini 
the  election,  his  election  is  void.  (State  v.  Collier,  3  Pac.  Coast  Law 
J.  394;  State  v.  Purdy,  36  Wis.  213,  17  Am.  Eep.  485.) 

A  vote  given  for  a  public  officer,  in  consideration  of  his  promise, 
in  case  he  should  be  elected,  to  donate  a  sum  of  money,  or  other  valu- 
able thing  to  a  third  party,  is  void.  (Tucker  v.  Aiken,  7  N.  H.  113; 
Alvord  V.  Collin,  20  Pick.   (Mass.)  418.) 

See,  further,  State  v.  Dustin,  5  Or.  375,  20  Am.  Eep.  746;  Common- 
wealth V.  Shaver,  3  Watts  &  S.  (Pa.)  338. 

SUFFRAGE. — This  section  does  not  authorize  the  passage  of  a  law 
curtailing  the  privilege  of  free  suffrage.  (Spier  v.  Baker,  120  Cal. 
370,- 41  L;  R.  A.  196,  52  Pac.  659.) 

What  constitutes  conviction  of  crime  within  constitutional  pro- 
vision denying  right  to  vote  to  convicted  person.  See  note,  15 
Ann.  Cas.  103. 

Residence,  when  absence  not  to  affect. 

Sec.  12.  Absence  from  this  state,  on  business  of  the 
state  or  of  the  United  States,  shall  not  affect  the  question 
of  residence  of  any  person. 


589  MISCELLANEOUS  SUBJECTS.      Art.  XX,  §§  13-1& 

Plurality  vote  to  elect. 

Sec.  13.  A  plurality  of  the  votes  given  at  any  election 
shall  constitute  a  choice  where  not  otherwise  directed  in 
this  Constitution,  provided  that  it  shall  be  competent  in  all 
charters  of  cities,  counties  or  cities  and  counties  framed 
under  the  authority  of  this  Constitution  to  provide  the 
manner  in  which  their  respective  elective  officers  may  be 
elected  and  to  prescribe  a  higher  proportion  of  the  vote 
therefor;  and  provided  also,  that  it  shall  be  competent  for 
the  legislature  by  general  law  to  provide  the  manner  in 
which  officers  of  municipalities  organized  or  incorporated, 
under  general  laws  may  be  elected  and  to  prescribe  a 
higher  proportion  of  the  vote  therefor.  (Amendment  ap- 
proved October  10,  1911.) 

[ORIGINAL  SECTION.] 
Sec.  13.     A  plurality   of  the   votes   given   at   any   election   shall 
constitute   a  choice,  where  not  otherwise   directed  in  this   Consti- 
tution. 

PLURAIilTY  OF  VOTES.— If  the  person  receiving  the  highest 
number  of  votes  is  ineligible,  the  person  receiving  the  next  highest 
number  is  not  elected,  but  the  election  must  be  annulled.  (Campbell 
V.  Free,  7  Cal.  App.  151,  93  Pac.  lOGO.) 

In  order  to  be  elected  a  person  must  receive  a  plurality  of  the  votes 
cast.  (Campbell  v.  Free,  7  Cal.  App.  151,  93  Pac.  1060;  McGregor 
V.  Board  of  Trustees,   159  Cal.  441,   114  Pac.  566.) 

Election  of  ineligible  candidate  does  not  entitle  person  receiving 
next  highest  number  of  votes  to  the  office.     See  note,  12  Am. 
Eep.  341. 
Effect    of    ineligibility    of    person    receiving    highest    number    of 
votes.     See  note,  124  Am.  St,  Eep.  211. 

State  board  of  health. 

Sec.  14.  The  legislature  shall  provide,  by  law,  for  the 
maintenance  and  efficiency  of  a  state  board  of  health. 

Mechanic 's  lien. 

Sec.  15.  Mechanics,  materialmen,  artisans,  and  labor- 
ers of  every  class,  shall  have  a  lien  upon  the  property  upon 
which  they  have  bestowed  labor  or  furnished  material  for 
the  value  of  such  labor  done  and  material  furnished;  and 
the  legislature  shall  provide,  by  law,  for  the  speedy  and 
efficient  enforcement  of  such  liens. 


Art.  XX,  §  15  CONSTITUTION  OF  1879.  590 

MECHANICS'  LIENS.— This  section  is  not  self-executing  and  is 
inoperative,  except  as  supplemented  by  legislation.  (Spinney  v.  Grif- 
fith, 98  Cal.  149,  32  Pac.  974.) 

The  Constitution  by  this  section  has  left  to  the  legislature  the  duty 
of  providing  for  the  enforcement  of  these  liens.  (Morse  v.  De  Ardo, 
107  Cal.  622,  40  Pac.  1018.) 

This  section  is  self-executing,  (Miltimore  v,  Nofziger  Bros.  L.  Co., 
150  Cal.  790,  90  Pac.  114.) 

The  mechanic's  lien  is  created  by  the  Constitution.  (Goldtree  v. 
San  Diego,  8  Cal.  App.  505,  97  Pac.  216.) 

The  mechanic's  lien  law  should  be  construed  so  as  to  be  in  conso- 
nance with  the  constitutional  provision  granting  the  lien.  (Los  An- 
geles P.  B.  Co.  V.  Higgins,  8  Cal.  App.  514,  97  Pac.  414,  420.) 

This  section  places  mechanics,  materialmen,  artisans,  and  laborers 
in  one  class,  and  the  legislature  cannot  impair  their  rights  by  giving 
one  a  lien  in  preference  to  the  other.  (Miltimore  v.  Nofziger  Bros. 
L.  Co.,  150  Cal.  790,  90  Pac.  114.) 

The  legislature  has  power  to  provide  that  the  owner  shall  be  liable 
to  materialmen  and  laborers,  unless  he  executes  his  contract  in  a  cer- 
tain form,  and  files  it  in  the  recorder's  ofiice.  (Kellogg  v.  Howes,  81 
Cal.  170,  6  L.  E.  A.  588,  22  Pac.  509.) 

This  section  does  not  give  a  lien  upon  public  buildings  or  property. 
(Mayrhofer  v.  Board  of  Education,  89  Cal.  110,  23  Am.  St.  Kep.  451, 
26  Pac.  646;  Goldtree  v.  San  Diego,  8  Cal.  App.  505,  97  Pac.  210.) 

A  mechanic's  lien  can  be  enforced  against  a  fund  in  the  city  treas- 
ury to  pay  for  the  public  work  in  connection  with  which  the  lien  is 
claimed.     (Goldtree  v.  San  Diego,  8  Cal.  App.  505,  97  Pac.  216.) 

Sections  1183  to  1199  of  the  Code  of  Civil  Procedure,  not  being 
inconsistent  with  this  section,  remained  in  force  after  its  adoption. 
(Germania  Bldg.  etc.  Assn.  v.  Wagner,  61  Cal.  349.) 

The  provision  of  this  section  respecting  mechanics'  liens  is  subordi- 
nate to  the  Declaration  of  Eights.  (Stimson  Mill  Co.  v.  Braun,  136 
Cal.  122,  89  Am.  St.  Eep.  116,  57  L.  E.  A.  726,  68  Pac.  481.) 

The  provision  of  section  1203  of  the  Code  of  Civil  Procedure  re- 
quiring contractors  for  the  erection  of  buildings  to  secure  their  con- 
tracts by  bonds  is  not  authorized  by  this  section.  (Shaughnessy  v. 
American  Surety  Co.,  138  Cal.  543,  69  Pac.  250,  71  Pac.  701.) 

This  section  only  provides  for  a  lien  where  the  materials  have 
actually  been  used  upon  the  property  upon  which  the  lien  is  claimed. 
(Bennett  v.  Beadle,  142  Cal.  239,  75  Pac.  843.) 

This  section  authorizes  the  legislature  to  allow  counsel  fees  in  ac- 
tions to  foreclose  mechanics'  liens.  (Peckham  v.  Fox,  1  Cal.  App. 
307,  82  Pac.  91.) 

The  right  of  materialmen,  artisans,  and  laborers  to  have  a  lien  for 
the  full  value  of  labor  or  materials  furnished  is  solemnly  guaranteed 
by  the  Constitution,  and  legislation  must  be  subordinate  to  and  in 
consonance  with  this  provision.  (Hampton  v.  Christensen,  148  Cal. 
729,  84  Pac.  200.) 

This  section  did  not  repeal  existing  statutes  providing  for  the  en- 
forcement of  liens  of  mechanics.  (Peckham  v.  Fox,  1  Cal.  App.  307, 
82  Pac.  91.) 


591  MISCELLANEOUS   SUBJECTS.  Art.  XX,  §  16 

The  lien  law  is  not  unconstitutional  Tsecause  it  takes  property  with- 
out due  process  of  law,  or  abridges  the  right  to  contract  in  respect 
to  one's  property.  (Stimson  Mill  Co.  v.  Nolan,  5  Cal.  App.  754,  91 
Pac.  262.) 

A  subcontractor  is  entitled  to  a  lien  for  labor  and  materials  al- 
though he  did  not  personally  perform  the  labor.  (Barrett-Hicks  Co. 
V.  Glas,  14  Cal.  App.  289,  111  Pac.  760.) 

To  construe  section  1188  of  the  Code  of  Civil  Procedure  as  requir- 
ing a  separate  statement  of  the  amount  due  on  each  building,  when 
it  is  impossible  to  do  so,  would  render  nugatory  the  lien  provided  for 
by  the  Constitution.  (Southern  Cal.  Lumber  Co.  v,  Peters,  3  Cal. 
App.  478,  86  Pac.  816.) 

The  lien  provided  for  by  this  section  attaches  to  a  building  resting 
upon  land  in  which  the  person  causing  the  building  to  be  erected  has 
no  interest.     (Linck  v.  Meikeljohn,  2  Cal.  App.  506,  84  Pac.  309.) 

Who   are  laborers.     See   notes,   58   Am.   St.   Eep.   303;   Ann.   Cas. 

1913B,  138. 
Validity  of  mechanic's  lien  laws.     See  notes,  4  Ann.  Cas.  620;  Ann. 

Cas.  1912C,  339. 
Validity  of  mechanic's  lien  laws  providing  for  taxing  attorneys' 
fees.     See  note,  11  Ann.  Cas.  714. 

The  mechanic's  or  materialman's  lien  attaches  to  the  structure  as 
the  material  is  furnished  or  the  labor  performed,  and  cannot  be  made 
subordinate  to  or  dependent  on  any  legislative  act.  (People  v.  Mox. 
ley,  17  Cal.  App.  466,  120  Pac.  43.) 

The  right  of  the  owner  to  deduct  stipulated  damages  as  against  a 
contractor  cannot  be  allowed  as  a  deduction  from  the  last  payment  to 
the  injury  of  lien  claimants,  especially  as  regards  payment  of 
such  liens  out  of  the  last  payment  which  was  required  to  be  with- 
held to  satisfy  lien  claimants,  and  that  fund  cannot  be  sequestered 
in  the  interest  of  the  owner  as  against  the  contractor.  (Mannix  v. 
Wilson,  18  Cal.  App.  595,  123  Pac.  981.) 

Section  1183a  of  the  Code  of  Civil  Procedure,  giving  a  lien  to  per- 
sons supplying  power  by  means  of  teams,  wagons,  vehicles,  imple- 
ments or  appliances,  used  in  the  construction,  alteration,  addition  to 
or  repair  of  any  of  the  improvements  or  works  mentioned  in  section 
1183  of  that  code,  is  constitutional,  (Mendenhall  v.  Gray,  167  Cal. 
233,   139   Pac.   67.) 

Term  of  ofl&ce,  duration  of. 

Sec.  16.  When  the  term  of  any  officer  or  commissioner 
is  not  provided  for  in  this  Constitution,  the  term  of  such 
officer  or  commissioner  may  be  declared  by  law ;  and,  if  not 
so  declared,  such  officer  or  commissioner  shall  hold  his  posi- 
tion as  such  officer  or  commissioner  during  the  pleasure  of 
the  authority  making  the  appointment ;  but  in  no  case  shall 
such  term  exceed  four  years;  provided,  however,  that  in 


Art.  XX,  §  16  CONSTITUTION  OF  1879.  592 

the  case  of  any  officer  or  employee  of  any  municipality  gov- 
erned under  a  legally  adopted  charter,  the  provisions  of 
such  charter  with  reference  to  the  tenure  of  office  or  the 
dismissal  from  office  of  any  such  officer  or  employee  shall 
control ;  and  provided,  further,  that  the  term  of  office  of 
any  person  heretofore  or  hereafter  appointed  to  hold  office 
or  employment  during  good  behavior  under  civil  service 
laws  of  the  state  or  of  any  political  division  thereof  shall 
not  be  limited  by  this  section.  (Amendment  approved 
October  10,  1911.) 

[AMENDMENT  OF  1906.] 
Sec.  16.  When  the  term  of  any  oflScer  or  commissioner  is  not 
provided  for  in  this  Constitution,  the  term  of  such  officer  or  com- 
missioner may  be  declared  by  law;  and,  if  not  so  declared,  such 
officer  or  commissioner  shall  hold  his  position  as  such  officer  or 
commissioner  during  the  pleasure  of  the  authority  making  the  ap- 
pointment; but  in  no  case  shall  such  term  exceed  four  years; 
provided,  however,  that  in  the  case  of  any  officer  or  employee  of 
any  municipality  governed  under  a  legally  adopted  charter,  the 
provisions  of  such  charter  with  reference  to  the  tenure  of  office  or 
the  dismissal  from  office  of  any  such  officer  or  employee  shall  con- 
trol.    (Amendment  adopted  November  6,  1906.) 

[ORIGINAL  SECTION.] 
Sec.  16.  When  the  term  of  any  officer  or  commissioner  is  not 
provided  for  in  this  Constitution,  the  term  of  such  officer  or  com- 
missioner may  be  declared  by  law;  and,  if  not  so  declared,  such 
officer  or  commissioner  shall  hold  his  position  as  such  officer  or 
commissioner  during  the  pleasure  of  the  authority  making  the  ap- 
pointment;   but   in    no   case    shall    such    term    exceed    four   years. 

TERM  OF  OFFICE. — This  section,  being  a  re-enactment  of  section 
7,  article  XI,  of  the  former  Constitution,  must  be  construed  in  the 
same  manner.     (People  v.  Edwards,  93  Cal.  153,  28  Pac.  831.) 

The  word  "duration"  signifies  extent,  limit,  or  time.  (People  v. 
Hill,  7  Cal.  97.) 

A  hospital  physician  of  the  county  is  not  a  public  officer.  (People 
V.  Wheeler,  136  Cal.  652,  69  Pac.  435.) 

This  section  only  applies  to  officers  whose  term  is  "not  provided 
for  in  the  Constitution"  and  does  not  apply  to  superior  judges.  (Peo- 
ple V.  Campbell,  138  Cal.  11,  70  Pac.  918.) 

"Good  behavior"  is  not  a  term  within  the  meaning  of  this  section. 
(Somers  v.  State,  5  S.  D.  584,  59  N.  W.  962.) 

When  an  ineligible  person  receives  the  highest  number  of  votes, 
there  is  a  vacancy  which  the  board  of  supervisors  has  power  to  fill. 
(Campbell  v.  Board  of  Supervisors,  7  Cal.  App.  155,  93  Pac.  1061.) 

The  legislature  may  direct  the  time  and  mode  of  the  election  of  an 
officer  whose  term  is  prescribed  by  the  Constitution,  but  cannot 
change  the  tenure.     (People  v.  Burbank,  12  Cal.  378.) 


593  MISCELLANEOUS   SUBJECTS.  Art.  XX,  §  16 

Where  an  officer  is  appointed  for  two  years,  he  does  not  hold  by 
the  tenure  of  the  approbation  of  the  appointing  power.  (People  v. 
Eeid,  6  Cal.  288.) 

An  officer  appointed  to  hold  for  one  year,  or  until  his  successor 
should  be  appointed  and  qualified,  has  no  fixed  term,  and  he  may  be 
removed  at  any  time  by  the  appointing  power,  (Higgins  v.  Cole,  100 
Cal.  260,  34  Pac.  678.) 

This  section  refers  to  officers  of  statutory  creation  as  well  as  to 
officers  mentioned  in  the  Constitution  itself.  (People  v.  Perry,  79 
Cal.  105,  21  Pac.  423.) 

The  commissioners  to  manage  the  Yosemite  Valley  are  officers  of 
the  state  within  the  meaning  of  this  section,  and  their  terms  ex;>ired 
four  years  after  their  appointment.  (People  v.  Ashburner,  55  Cal. 
517.) 

The  commissioners  of  the  funded  debt  of  San  Francisco  were  not 
officers.     (People  v.  Middleton,  28  Cal.  603.) 

The  members  of  the  board  of  health  of  San  Francisco  are  officers 
within  the  meaning  of  this  section,  and  a  statute  fixing  their  term 
of  office  at  five  years  is  unconstitutional  and  leaves  the  duration  of 
the  term  unfixed  and  subject  to  the  pleasure  of  the  governor.  (Peo- 
ple V.  Perry,  79  Cal.  105,  21  Pac.  423.) 

The  health  inspector  of  San  Francisco  is  an  officer.  (Patton  v. 
Board  of  Health,  127  Cal.  388,  78  Am.  St.  Rep.  66,  59  Pac.  702.) 

As  to  who  are  officers  generally,  see  Vaughn  v.  English,  8  Cal.  39; 
Crawford  v.  Dunbar,  52  Cal.  36;  Farrell  v.  Board  of  Trustees  of  Sac- 
ramento, 85  Cal.  408,  24  Pac.  868;  State  v.  Brandt,  41  Iowa,  593; 
Somers  v.  State,  5  S.  D.  584,  59  N.  W.  962;  United  States  v.  Hart- 
well,  6  Wall.  385,  18  L.  Ed.  830;  note,  72  Am.  Dec.  179-189;  Wright 
V.  Laugenour,  55  Cal.  280;  Phelps  v.  Winchomb,  3  Bulst.  77. 

The  legislature  cannot  provide  that  officers  appointed  by  a  board 
shall  not  be  removed  without  just  cause,  where  the  duration  of  their 
terms  is  not  fixed.  (People  v.  Hill,  7  Cal.  97;  Smith  v.  Brown,  59 
Cal.  672;  People  v.  Shear,  15  Pac.  92;  Patton  v.  Board  of  Health,  127 
Cal.  388,  78  Am.  St.  Eep.  66,  59  Pac.  702;  Sponogle  v.  Curnow,  136 
Cal.  580,  69  Pac.  255.) 

Policemen  appointed  without  any  definite  term  hold  during  the 
pleasure  of  the  appointing  power,  and  may  be  removed  without 
charges,  notice  or  trial.  (Farrell  v.  Board  of  Police  Commissioners, 
1  Cal.  App.  5,  81  Pac.  674.) 

As  to  whether  or  not  the  Civil  Service  provisions  of  the  San  Fran- 
cisco charter  are  in  violation  of  this  provision,  see  Cahen  v.  Wells, 
132  Cal.  447,  64  Pac.  699. 

This  section  must  be  construed  to  deny  the  right  of  removal  in 
those  cases  where  the  tenure  is  defined  by  law.  (People  v.  Jewett, 
6  Cal.  291.) 

The  Constitution  does  not  prohibit  an  office  created  by  the  legis- 
lature from  continuing  over  four  years,  but  merely  limits  the  incum- 
bent's term  to  four  years.     (People  v.  Stratton,  28  Cal.  3S2.) 

This  section  does  not  forbid  a  holding  over  until  a  successor  has 
been  chosen  and  qualified.  (People  v.  Edwards,  93  Cal.  153,  28  Pac, 
831.) 

Constitution — 38 


Art.  XX,  §§  17, 171/2     CONSTITUTION  OF  1879.  594 

"Where  the  term  of  an  officer  is  not  fixed  by  the  Constitution  or 
by  law,  and  the  authority  of  the  power  making  the  appointment  haa 
ceased,  there  is  no  vacancy  in  the  office,  but  the  officer  holds  over. 
(People  V.  Hammond,  66  Cal.  654,  6  Pac.  741;  People  v.  Gunst,  110 
Cal.  447,  42  Pae.  963.) 

When  the  charter  provides  a  tribunal  with  power  to  remove  muni- 
cipal officers,  such  method  of  procedure  is  exclusive  and  supersedes 
the  provision  of  the  Penal  Code  giving  jurisdiction  to  the  superior 
court.     (Dinan  v.  Superior  Court,  6  Cal.  App.  217,  91  Pac.  806.) 

The  amendment  of  1906  was  intended  to  make  it  clear  that  the  pro- 
visions of  a  freeholders'  charter  should  control  in  the  matter  of  the 
dismissal  from  office  of  any  officer  or  employee  of  the  municipality. 
(Craig  v.  Superior  Court,  157  Cal.  481,  108  Pac.  310.) 

The  power  of  amotion  may  be,  notwithstanding  the  existence  of 
the  general  laws,  conferred  by  charter  upon  municipal  corporations, 
and  when  so  conferred  will  be  construed,  depending  upon  the  nature 
of  the  language,  as  being  either  concurrent  or  exclusive.  (Legault  v. 
Board  of  Trustees,  161  Cal.  197,  39  L.  R.  A.  (N.  S.)  519,  118  Pae. 
706.) 

Eight  hours  a  legal  day's  labor. 

Sec.  17.  The  time  of  service  of  all  laborers  or  workmen 
or  mechanics  employed  upon  any  public  works  of  the  state 
of  California,  or  of  any  county,  city  and  county,  city,  town, 
district,  township,  or  any  other  political  subdivision 
thereof,  whether  said  work  is  done  by  contract  or  other- 
wise, shall  be  limited  and  restricted  to  eight  hours  in  any 
one  calendar  day,  except  in  cases  of  extraordinary  emer- 
gency caused  by  fire,  flood,  or  danger  to  life  and  property, 
or  except  to  work  upon  public,  military,  or  naval  works  or 
defenses  in  time  of  war,  and  the  legislature  shall  provide 
by  law  that  a  stipulation  to  this  effect  shall  be  incorporated 
in  all  contracts  for  public  work  and  prescribe  proper  pen- 
alties for  the  speedy  and  efficient  enforcement  of  said  law. 
(Amendment  adopted  November  4,  1902.) 

[OEIGINAL  SECTION.] 
Sec.  17.     Eight  hours  shall  constitute  a  legal  day's  work  on  all 
public  work. 

Minimum  wage. 

Sec.  171/2.  The  legislature  may,  by  appropriate  legisla- 
tion, provide  for  the  establishment  of  a  minimum  wage  for 
women  and  minors  and  may  provide  for  the  comfort, 
health,  safety  and  general  welfare  of  any  and  all  employees. 


595  MISCELLANEOUS  SUBJECTS.      Art.  XX,  §§  18,  19 

No  provision  of  this  Constitution  shall  be  construed  as 
a  limitation  upon  the  authority  of  the  legislature  to  con- 
fer upon  any  commission  now  or  hereafter  created,  such 
power  and  authority  as  the  legislature  may  deem  requisite 
to  carry  out  the  provisions  of  this  section.  (New  section 
added  by  amendment  adopted  November  3,  1914.) 

Sex  not  a  disqualification  for  business. 

Sec.  18.  No  person  shall,  on  account  of  sex,  be  disquali- 
fied from  entering  upon  or  pursuing  any  lawful  business, 
vocation,  or  profession. 

SEX. — This  section  is  self-executing,  and  needs  no  legislation  to 
put  it  in  effect,  and  imposes  a  restraint  on  every  law-making  power 
of  the  state,  whether  an  act  of  the  legislature  or  an  ordinance  of  a 
municipal  corporation.  (Matter  of  Maguire,  57  Cal.  604,  40  Am.  Kep. 
125.) 

The  word  "qualified,"  as  used  in  this  section,  is  presumed  to  be 
used  in  its  natural  and  ordinary  sense.  (Matter  of  Maguire,  57  Cal. 
604,  40  Am.  Eep.  125;  Weill  v.  Kenfield,  54  Cal.  111.) 

An  ordinance  prohibiting  the  employment  of  females  in  dance-halls, 
etc.,  is  in  violation  of  this  section.  (Matter  of  Maguire,  57  Cal.  604, 
40  Am.  Eep.  125.  But  see  Ex  parte  Felchlin,  96  Cal.  360,  31  Am.  St. 
Rep.  223,  31  Pac.  224.) 

A  city  ordinance  which  fixes  the  license  for  the  carrying  on  of  a 
saloon  where  females  are  employed,  and  where  intoxicating  liquors 
are  sold  in  less  quantities  than  one  quart,  at  a  higher  rate  than  a 
license  for  conducting  a  saloon  where  females  are  not  employed,  is 
valid.  (Ex  parte  Felchlin,  96  Cal.  360,  31  Am.  St.  Rep.  223,  31  Pac. 
224.  Opinion  of  McKinstry,  J.,  in  Matter  of  Maguire,  57  Cal.  604, 
40  Am.  Eep.  125,  approved.) 

An  ordinance  providing  that  no  license  shall  be  issued  to  persons 
engaged  in  the  sale  of  liquors  in  dance-halls,  or  dance-cellars,  or  in 
places  where  musical,  theatrical,  or  other  public  exhibitions  are  given, 
and  where  females  attend  as  waitresses,  is  valid.  (Ex  parte  Hayes, 
98  Cal.  555,  20  L.  R.  A.  701,  33  Pac.  337.) 

This  section  does  not  forbid  such  reasonable  restrictions  upon  the 
hours  of  labor  of  women  as  may  be  necessary  for  the  protection  and 
preservation  of  the  public  health.  (Matter  of  Application  of  Miller, 
162  Cal.  687,  124  Pac.  427;  affirmed  in  Miller  v.  Wilson,  236  U.  S.  373, 
59  L.  Ed.  628,  35  Sup.  Ct.  Rep.  342.) 

Payment  of  expenses  of  convention. 

Sec.  19.  Nothing  in  this  Constitution  shall  prevent  the 
legislature  from  providing,  by  law,  for  the  payment  of  the 
expenses  of  the  convention  framing  this  Constitution,  in- 


Art.  XX,  §§  20,  21     constitution  of  1879.  596 

eluding  the  per  diem  of  the  delegates  for  the  full  term 
thereof. 

Election  of  oflBcers — Term,  when  commences. 

Sec.  20.  Elections  of  the  officers  provided  for  by  this 
Constitution,  except  at  the  election  in  the  year  eighteen 
hundred  and  seventy-nine,  shall  he  held  on  the  even-num- 
bered years  next  before  the  expiration  of  their  respective 
terms.  The  terms  of  such  officers  shall  commence  on  the 
first  Monday  after  the  first  day  of  January  next  following 
their  election. 

TIME  OF  ELECTIONS.— This  section  controls  all  other  provisions 
of  the  Constitution  as  to  when  the  term  of  office  of  officers  elected 
under  it  commences.  (Merced  Bank  v.  Rosenthal,  99  Cal.  39,  31  Pac. 
849,  33  Pac.  732.) 

The  officers  mentioned  in  this  section  are  not  the  county,  township 
and  municipal  officers  who  are  distinctly  mentioned  in  section  5,  arti- 
cle XI,  and  the  duration  of  whose  terms  the  legislature  is  expressly 
directed  to  fix.     (In  re  Stuart,  53  Cal.  745.) 

The  officers  mentioned  in  this  section  are  the  same  as  those  men- 
tioned in  section  10,  article  XXII.     (Barton  v.  Kalloch,  56  Cal.  9o.) 

Under  this  section  justices  of  the  peace  are  to  be  elected  in  the 
even-numbered  years.  (People  v.  Ransom,  58  Cal.  558;  Bishop  v. 
Council  of  City  of  Oakland,  58  Cal.  572;  Jenks  v.  Council  of  City  of 
Oakland,  58  Cal.  576;  Coggins  v.  Sacramento,  59  Cal.  599.) 

The  words  "from  and  after"  must  be  construed  to  mean  "on  and 
after"  and  the  controller's  term  includes  the  first  Monday,  (People 
V.  Nye,  9  Cal.  App.  148,  98  Pac.  241.) 

Laws  to  remain  in  force. 

Sec.  21.  The  legislature  may  by  appropriate  legislation 
create  and  enforce  a  liability  on  the  part  of  all  employers 
to  compensate  their  employees  for  any  injury  incurred  by 
the  said  employees  in  the  course  of  their  employment  irre- 
spective of  the  fault  of  either  party.  The  legislature  may 
provide  for  the  settlement  of  any  disputes  arising  under 
the  legislation  contemplated  by  this  section,  by  arbitration, 
or  by  an  industrial  accident  board,  by  the  courts,  or  by 
either,  any  or  all  of  these  agencies,  anything  in  this  Con- 
stitution to  the  contrary  notwithstanding.  (Amendment 
approved  October  10,  1911.) 


I 


597,  BOUNDARY.  Art.  XXI,  §  1 

ARTICLE  XXI. 

BOUNDARY. 

Section  1.  The  boundary  of  the  state  of  California 
shall  be  as  follows:  Commencing  at  the  point  of  intersec- 
tion of  the  forty-second  degree  of  north  latitude  with  the 
one  hundred  and  twentieth  degree  of  longitude  west  from 
Greenwich,  and  running  south  on  the  line  of  said  one  hun- 
dred and  twentieth  degree  of  west  longitude  until  it  inter- 
sects the  thirty-ninth  degree  of  north  latitude ;  thence  run- 
ning in  a  straight  line,  in  a  southeasterly  direction,  to  the 
River  Colorado,  at  a  point  where  it  intersects  the  thirty- 
fifth  degree  of  north  latitude;  thence  down  the  middle  of 
the  channel  of  said  river  to  the  boundary  line  between  the 
United  States  and  Mexico,  as  established  by  the  treaty  of 
May  thirtieth,  one  thousand  eight  hundred  and  forty-eight ; 
thence  running  west  and  along  said  boundary  line  to  the 
Pacific  Ocean,  and  extending  therein  three  English  miles ; 
thence  running  in  a  northwesterly  direction  and  following 
the  direction  of  the  Pacific  Coast  to  the  forty-second  degree 
of  north  latitude;  thence  on  the  line  of  said  forty-second 
degree  of  north  latitude  to  the  place  of  beginning.  Also, 
including  all  the  islands,  harbors,  and  bays  along  and  adja- 
cent to  the  coast. 


Art.  XXII.  §  1 


CONSTITUTION  OF  1879. 


598 


§     9. 
§  10. 

§  11. 

§   12. 


ARTICLE  XXII. 

SCHEDULE. 

Laws  to  remain  in  force. 

Recognizances,  obligations,  etc.,  unaffected. 

Courts,  save  justices'  and  police  courts,  abolished — Transfer  of 

records,  books,  etc. 
State  printing. 
Ballots  to  be  printed. 

Registers,  poll-books,  etc.,  to  be  furnished. 
Who  entitled  to  vote  for  Constitution. 
Canvass  of  returns  of  vote. 
Computing  returns  of  vote. 
Terms  of  oflfieers  first  elected. 
Laws  applicable  to  judicial  system. 
Constitution,  when  to  take  effect. 


That  no  inconvenience  may  arise  from  the  alterations 
and  amendments  in  the  Constitution  of  this  state,  and  to 
carry  the  same  into  complete  effect,  it  is  hereby  ordained 
and  declared: 

Laws  to  remain  in  force. 

Section  1.  That  all  laws  in  force  at  the  adoption  of  this 
Constitution,  not  inconsistent  therewith,  shall  remain  in 
full  force  and  effect  until  altered  or  repealed  by  the  legis- 
lature; and  all  rights,  actions,  prosecutions,  claims,  and 
contracts  of  the  state,  counties,  individuals,  or  bodies  cor- 
porate, not  inconsistent  therewith,  shall  continue  to  be  as 
valid  as  if  this  Constitution  had  not  been  adopted.  The 
provisions  of  all  laws  which  are  inconsistent  with  this  Con- 
stitution shall  cease  upon  the  adoption  thereof,  except  that 
all  laws  which  are  inconsistent  with  such  provisions  of  this 
Constitution  as  require  legislation  to  enforce  them  shall  re- 
main in  full  force  until  the  first  day  of  July,  eighteen  hun- 
dred and  eighty,  unless  sooner  altered  or  repealed  by  the 
legislature. 

LAWS  CONTINUED  IN  FORCE.— The  Constitution  of  1879  did 
not,  propno  vigore,  repeal  or  displace  all  the  statutes  of  the  state 
theretofore  in  force,  but  only  such  as  were  inconsistent  with  those 
provisions  of  that  Constitution  which  do  not  require  legislation  to 
put  them  in  force.     (In  re  Stuart,  53  Cal.  745.) 

Section  25,  article  IV,  being  merely  prospective,  special  laws  passed 
before  the  adoption  of  the  Constitution  are  not  superseded.  (Smith 
v.  McDermott,  93  Cal.  421,  29  Pac.  34.) 


599  SCHEDULE.  Art.  XXII,  §  1 

The  provisions  of  the  Constitution  giving  the  superior  court  juris- 
diction of  special  proceedings,  not  requiring  legislation  to  enforce  it, 
the  superior  court  has  jurisdiction,  as  the  successor  of  the  district 
court,,  to  entertain  proceedings  under  sections  312  and  315  of  the 
Civil  Code,  although  those  sections  mention  the  district  court. 
(Wickersham  v.  Brittan,  93  Gal.  34,  28  Pac.  792,  15  L.  R.  A.  106,  29 
Pac.  51.) 

A  statute  giving  the  district  court  jurisdiction  of  a  special  proceed- 
ing is  not  inconsistent  with  the  Constitution,  and  did  not  cease  upon 
its  adoption.  (Wickersham  v.  Brittan,  93  Cal.  34,  15  L.  R.  A.  106,  28 
Pac.  792,  29  Pac.  51.  Fraser  v.  Alexander,  75  Cal.  147,  16  Pac.  757. 
overruled.) 

Section  13,  article  XI,  being  only  prospective,  an  act  passed  prior 
to  the  Constitution  which  is  inconsistent  with  it  is  not  superseded. 
(Board  of  Commissioners  v.  Board  of  Trustees,  71  Cal.  310,  12  Pac. 
224.) 

Sections  1183  to  1199  of  the  Code  of  Civil  Procedure,  not  being 
inconsistent  with  section  15,  article  XX,  of  the  Constitution,  remained 
in  force  after  its  adoption.  (Germania  Bldg.  etc.  Assn.  v.  Wagner, 
61  Cal.  349.) 

Any  general  law  in  conflict  with  the  Civil  Code  and  passed  subse- 
quent to  its  adoption  supersedes  the  provisions  thereof,  and  the  Con- 
stitution does  not  require  such  a  law  to  be  passed  as  an  amendment 
to  the  Civil  Code  in  order  to  affect  any  rights  or  powers  therein  given 
to  corporations.  (People  v.  Bank  of  San  Luis  Obispo,  154  Cal.  194, 
97  Pac.  306.) 

Section  1033  of  the  Penal  Code  is  not  inconsistent  with  section  9, 
article  I  of  the  Constitution,  and  was  continued  in  force.  (Older  v. 
Superior  Court,  157  Cal.  770,  109  Pac.  478.) 

The  law  providing  for  the  election  of  a  clerk  of  the  supreme  court 
was  not  superseded  by  the  Constitution.  (Gross  v.  Kenfield,  57  Cal. 
626.) 

Section  1,  article  XIII,  which  provides  that  "all  property  in  the 
state,  not  exemjit  under  the  laws  of  the  United  States,  shall  be  taxed 
in  proportion  to  its  value,  to  be  ascertained  as  provided  by  law,"  is 
self-executing,  and  requires  the  assessor  to  ascertain  such  value  in  the 
manner  now  provided  by  law.  (Hyatt  v.  Allen,  54  Cal.  353;  McDon- 
ald V.  Patterson,  54  Cal.  245.) 

The  Consolidation  Act  of  the  city  and  county  of  San  Francisco  re- 
mained in  force  notwithstanding  section  7,  article  XI,  requiring  two 
boards  of  supervisors,  since  that  section  required  legislation  to  put 
it  in  effect.     (Desmond  v.  Dunn,  55  Cal.  242.) 

The  effect  of  the  new  Constitution  in  repealing  the  provision  of  the 
act  of  1878,  declaring  how  and  by  whom  two  of  the  fire  commission- 
ers should  be  appointed,  did  not  necessarily  destroy  the  two  offices, 
nor  affect  the  validity  of  the  act,  but  the  incumbents  continued  to 
hold  after  the  appointing  power  was  abolished.  (People  v.  Newman, 
96  Cal.  605,  31  Pac.  564.) 

Where,  at  the  adoption  of  the  Constitution,  the  Political  Code  fixed 
the  salary  of  county  superintendent  of  schools,  and  in  1878  the  legis- 
lature passed  a  special  law  on  the  subject  to  go  into  effect  on  the  first 
Monday  of  March,  18S0,  the  provision  of  the  Political  Code  remained 


Art.  XXII,  §  1  CONSTITUTION  OF  1879.  GOO 

in  force  and  the  special  act  never  went  into  effect.  (Peachey  v. 
Board  of  Supervisors,  59  Cal.  548;  Whiting  v.  Haggard,  60  Cal.  513.) 

Where  a  special  act  was  passed  prior  to  the  new  Constitution,  but 
it  was  provided  that  it  should  not  affect  the  present  incumbent,  whose 
term  did  not  expire  until  after  the  Constitution  went  into  effect,  the 
act  was  not  superseded  by  the  Constitution.  (Los  Angeles  County 
V.  Lamb,  61  Cal.  196.  Peachey  v.  Board  of  Supervisors,  59  Cal.  548, 
distinguished.) 

Section  322  of  the  Civil  Code,  not  being  inconsistent  with  section  3, 
article  XII,  of  the  Constitution,  remained  in  force  after  its  adoption, 
(Gardiner  v.  Bank  of  Napa,  160  Cal.  577,  117  Pac.  667.) 

The  act  of  1877-78  reviving  the  common-law  rule  as  to  trespassing 
animals,  not  being  inconsistent  with  the  Constitution,  remained  in 
force  after  its  adoption.  (Blevins  v.  MuUally,  22  Cal.  App.  519,  135 
Pac.  307.) 

LAWS  SUPERSEDED.— The  provision  of  the  charter  of  San  Fran- 
cisco for  the  making  a  contract  for  street  work  before  an  assessment 
had  been  levied  and  collected,  being  inconsistent  with  section  19,  arti- 
cle XI,  of  the  Constitution,  was  superseded  by  it.  (Thomason  v. 
Euggles,  69  Cal.  465,  11  Pac.  20;  Oakland  Pav.  Co.  v.  Hilton,  69  Cal. 
479,  11  Pac.  3;  McDonald  v.  Patterson,  54  Cal.  245;  Donahue  v.  Gra- 
ham, 61  Cal.  276.) 

The  act  of  1858  providing  for  the  fixing  of  water  rates  by  a  com- 
missioner, being  inconsistent  with  section  1,  article  XIV,  of  the  Con- 
stitution, was  superseded  by  that  section.  (Spring  Valley  W.  W.  v. 
Board  of  Suprs.  of  San  Francisco,  61  Cal.  3.) 

The  provision  of  the  act  of  1858,  requiring  water  companies  to  fur- 
nish water  free  of  charge  to  cities  and  counties,  was  abrogated  by 
this  section,  because  in  conflict  with  section  19,  article  XI,  and  sec- 
tion 1,  article  XIV.  (Spring  Valley  W.  W.  v.  Board  of  Suprs.  of  San 
Francisco,  61  Cal.  18.) 

The  provision  of  the  Political  Code  imposing  a  license  upon  the  busi- 
ness of  selling  goods,  etc.,  at  a  fixed  place  of  business,  being  in  con- 
flict with  section  12,  article  XI,  of  the  Constitution,  became  inopera- 
tive upon  the  adoption  of  the  Constitution.  (People  v.  Martin,  60 
Cal,  153.) 

An  ordinance  prohibiting  the  employment  of  females  in  dance-halls, 
etc.,  being  in  conflict  with  section  18,  article  XX,  ceased  upon  the 
adoption  of  the  Constitution.  (Matter  of  Maguire,  57  Cal.  604,  40 
Am.  Eep.  125.) 

The  act  of  1875,  which  provided  that  the  text-books  in  use  in  1873, 
1874,  1875,  should  be  continued  in  use  until  otherwise  provided  by 
statute,  was  superseded  by  section  7,  article  IX,  which  provides  that 
the  local  boards  of  education  should  adopt  text-books  within  their 
respective  jurisdictions.     (People  v.  Board  of  Education,  55  Cal.  331.) 

An  act  passed  before  the  adoption  of  the  Constitution,  but  which 
was  not  to  go  into  effect  until  a  later  date,  never  went  into  effect. 
(Speegle  v.  Joy,  60  Cal.  278.) 


601  SCHEDULE.  Art.  XXII,  §§2, 3 

RecogTiizances,  obligations,  etc.,  unaffected. 

Sec.  2.  That  all  recognizances,  obligations,  and  all  other 
instruments  entered  into  or  executed  before  the  adoption 
of  this  Constitution,  to  this  state,  or  to  any  subdivision 
thereof,  or  any  municipality  therein,  and  all  fines,  taxes, 
penalties,  and  forfeitures  due  or  oAving  to  this  state,  or  any 
subdivision  or  municipality  thereof,  and  all  writs,  prose- 
cutions, actions,  and  causes  of  actions,  except  as  herein 
otherwise  provided,  shall  continue  and  remain  unaffected 
by  the  adoption  of  this  Constitution.  All  indictments  or 
informations  which  shall  have  been  found,  or  may  here- 
after be  found,  for  any  crime  or  offense  committed  before 
this  Constitution  takes  effect,  may  be  proceeded  upon  as 
if  no  change  had  taken  place,  except  as  otherwise  provided 
in  this  Constitution. 

Courts,  save  justices'  and  police  courts,  abolished — Trans- 
fer of  records,  books,  etc. 

Sec.  3.  All  courts  now  existing,  save  justices'  and  police 
courts,  are  hereby  abolished ;  and  all  records,  books,  papers, 
and  proceedings  from  such  courts,  as  are  abolished  by  this 
Constitution,  shall  be  transferred  on  the  first  day  of  Janu- 
ary, eighteen  hundred  and  eighty,  to  the  courts  provided 
for  in  this  Constitution ;  and  the  courts  to  which  the  same 
are  thus  transferred  shall  have  the  same  power  and  juris- 
diction over  them  as  if  they  had  been  in  the  first  instance 
commenced,  filed  or  lodged  therein. 

COURTS. — When  a  trial  was  commenced  and  the  testimony  taken 
by  a  judge  before  his  term  expired  under  the  old  Constitution,  and  he 
was  re-elected  under  the  new,  he  may,  as  a  judge  under  the  new, 
decide  the  case  on  the  evidence  then  taken,  without  a  resubmission. 
(Scale  V.  Ford,  29  Cal.  104.) 

The  amendments  to  the  Constitution  in  1862  did  not  ipso  facto  su- 
persede the  existing  courts,  but  such  courts  continued  in  existence 
until  the  new  system  should  be  in  a  condition  to  exercise  its  func- 
tions.    (In  re  Olivereji,  21  Cal.  415.) 

The  justices  of  the  peace  of  the  city  and  county  of  San  Francisco, 
provided  for  by  the  act  of  1866,  were  continued  in  force  by  this  sec- 
tion, and  are  not  affected  by  the  provisions  of  the  County  Govern- 
ment Act.  (Kahn  v.  Sutro,  114  Cal.  316,  33  L.  R.  A.  620,  46  Pac.  87, 
But  see  People  v.  Cobb,  133  Cal.  74,  65  Pac.  325.) 


Art.  XXII,  §  4  CONSTITUTION  OF  1879.  G02 

The  superior  court  of  San  Francisco  is  the  successor  of  th.e  munici- 
pal criminal  court  of  that  city  and  county.  (Ex  parte  Williams,  87 
Cal.  78,  24  Pac.  602,  25  Pac.  248.) 

An  action  to  abate  a  nuisance  pending  in  the  district  court,  being 
held  to  be  an  action  in  equity  under  the  former  Constitution,  is  not 
affected  by  the  adoption  of  the  new  Constitution.  (Learned  v.  Cas- 
tle, 67  Cal.  41,  7  Pac.  34.) 

The  superior  court  of  San  Francisco  acquired  jurisdiction  of  an 
action  pending  in  the  district  court  of  San  Francisco  to  recover  real 
estate  in  Sonoma  county.  (Gurnee  v.  Superior  Court,  58  Cal.  88;  San 
Francisco  Sav.  Union  v.  Abbott,  59  Cal.  400.) 

It  would  seem  that  it  was  intended  that  the  superior  judge  should 
succeed  to  the  duty  of  the  county  judge  in  respect  to  the  drawing  of 
jurors.     (People  v.  Gallagher,  55  Cal.  462.) 

The  superior  court  is  the  successor  of  the  county  court,  and  may 
issue  all  necessary  writs  to  the  execution  of  its  judgment.  (Ex  parte 
Toland,  54  Cal.  344.) 

The  superior  court  is  the  successor  of  the  district  court,  and  may 
carry  into  execution  a  judgment  of  death  rendered  by  the  district 
court.     (People  v.  Colby,  54  Cal.  184.) 

A  violation  in  1913  of  a  perpetual  injunction  granted  by  a  dis- 
trict court  in  1870,  constituted  contempt  of  the  superior  court,  which, 
by  virtue  of  this  section,  is  the  successor  of  the  district  court. 
(Gale  V.  Tuolumne   County  Water  Co.,  169  Cal.  46,  145  Pac.  532.) 

State  printing. 

Sec.  4.  The  superintendent  of  printing  of  the  state  of 
California  shall,  at  least  thirty  days  before  the  first 
Wednesday  in  May,  A.  D.  eighteen  hundred  and  seventy- 
nine,  cause  to  be  printed  at  the  state  printing  office  in  pam- 
phlet form,  simply  stitched,  as  many  copies  of  this  Consti- 
tution as  there  are  registered  voters  in  this  state,  and  mail 
one  copy  thereof  to  the  postoffice  address  of  each  regis- 
tered voter;  provided,  any  copies  not  called  for  ten  days 
after  reaching  their  delivery  office,  shall  be  subject  to  gen- 
eral distribution  by  the  several  postmasters  of  the  state. 
The  governor  shall  issue  his  proclamation,  giving  notice 
of  the  election  for  the  adoption  or  rejection  of  this  Consti- 
tution, at  least  thirty  days  before  the  said  first  Wednesday 
of  May,  eighteen  hundred  and  seventy-nine,  and  the  boards 
of  supervisors  of  the  several  counties  shall  cause  said  proc- 
lamation to  be  made  public  in  their  respective  counties,  and 
general  notice  of  said  election  to  be  given  at  least  fifteen 
days  next  before  said  election. 


603  SCHEDULE.  Art.  XXII,  §§  5-7 

Ballots  to  be  printed. 

Sec.  5.  The  superintendent  of  printing  of  the  state  of 
California  shall,  at  least  twenty  days  before  said  election, 
cause  to  be  printed  and  delivered  to  the  clerk  of  each 
county  in  this  state  five  times  the  number  of  properly  pre- 
pared ballots  for  said  election  that  there  are  voters  in  said 
respective  counties,  with  the  words  printed  thereon:  "For 
the  new  Constitution."  He  shall  likewise  cause  to  be  so 
printed  and  delivered  to  said  clerks  five  times  the  number 
of  properly  prepared  ballots  for  said  election  that  there  are 
voters  in  said  respective  counties,  with  the  words  printed 
thereon:  "Against  the  new  Constitution."  The  secretary 
of  state  is  hereby  authorized  and  required  to  furnish  the 
superintendent  of  state  printing  a  sufficient  quantity  of 
legal  ballot  paper,  now  on  hand,  to  carry  out  the  provisions 
of  this  section. 

Registers,  poll-books,  etc.,  to  be  furnished. 

Sec.  6.  The  clerks  of  the  several  counties  in  the  state 
shall,  at  least  five  days  before  said  election,  cause  to  be 
delivered  to  the  inspectors  of  elections,  at  each  election 
precinct  or  polling-place  in  their  respective  counties,  suit- 
able registers,  poll-books,  forms  of  return,  and  an  equal 
number  of  the  aforesaid  ballots,  which  number,  in  the  ag- 
gregate, must  be  ten  times  greater  than  the  number  of 
voters,  in  the  said  election  precincts  or  polling-places.  The 
returns  of  the  number  of  votes  cast  at  the  presidential 
election  in  the  year  eighteen  hundred  and  seventy-six  shall 
serve  as  a  basis  of  calculation  for  this  and  the  preceding 
section ;  provided,  that  the  duties  in  this  and  the  preceding 
section  imposed  upon  the  clerk  of  the  respective  counties 
shall,  in  the  city  and  county  of  San  Francisco,  be  performed 
by  the  registrar  of  voters  for  said  city  and  county. 

Who  entitled  to  vote  for  Constitution. 

Sec.  7.  Every  citizen  of  the  United  States,  entitled  by 
law  to  vote  for  members  of  the  assembly  in  this  state,  shall 
be  entitled  to  vote  for  the  adoption  or  rejection  of  this 
Constitution. 


Art.  XXII,  §§  8-10     CONSTITUTION  OF  1879.  G04 

Canvass  of  returns  of  vote. 

Sec.  8.  The  officers  of  the  several  counties  of  this  state, 
Avhose  duty  it  is,  under  the  law,  to  receive  and  canvass  the 
returns  from  the  several  precincts  of  their  respective  coun- 
ties, as  Avell  as  of  the  city  and  county  of  San  Francisco, 
shall  meet  at  the  usual  places  of  meeting  for  such  purposes 
on  the  first  Monday  after  said  election.  If,  at  the  time  of 
meeting,  the  returns  from  each  precinct  in  the  county  in 
which  the  polls  were  opened  have  been  received,  the  board 
must  then  and  there  proceed  to  canvass  the  returns;  but 
if  all  the  returns  have  not  been  received,  the  canvass  must 
be  postponed  from  time  to  time  until  all  the  returns  are 
received,  or  until  the  second  Monday  after  said  election, 
when  they  shall  proceed  to  make  out  returns  of  the  votes 
cast  for  and  against  the  new  Constitution;  and  the  pro- 
ceedings of  said  boards  shall  be  the  same  as  those  pre- 
scribed for  like  boards  in  the  case  of  an  election  for 
governor.  Upon  the  completion  of  said  canvass  and  re- 
turns, the  said  board  shall  immediately  certify  the  same,  in 
the  usual  form,  to  the  governor  of  the  state  of  California. 

Computing-  returns  of  vote. 

Sec.  9.  The  governor  of  the  state  of  California  shall,  as 
soon  as  the  returns  of  said  election  shall  be  received  by 
him,  or  within  thirty  days  after  said  election,  in  the  pres- 
ence and  with  the  assistance  of  the  controller,  treasurer, 
and  secretary  of  state,  open  and  compute  all  the  returns  re- 
ceived of  votes  cast  for  and  against  the  new  Constitution. 
If,  by  such  examination  and  computation,  it  is  ascertained 
that  a  majority  of  the  whole  number  of  votes  cast  at  such 
election  is  in  favor  or  such  new  Constitution,  the  executive 
of  this  state  shall,  by  his  proclamation,  declare  such  new 
Constitution  to  be  the  Constitution  of  the  state  of  Cali- 
fornia, and  that  it  shall  take  effect  and  be  in  force  on  the 
days  hereinafter  specified! 

Terms  of  officers  first  elected. 

Sec.  10.  In  order  that  future  elections  in  this  state 
shall  conform  to  the  requirements  of  this  Constitution,  tlie 


605  SCHEDULE.  Art.  XXII,  §  11 

terms  of  all  officers  elected  at  tlie  first  election  under  the 
same  shall  be,  respectively,  one  year  shorter  than  the  terms 
as  fixed  by  law  or  by  this  Constitution ;  and  the  successors 
of  all  such  officers  shall  be  elected  at  the  last  election  be- 
fore the  expiration  of  the  terms  as  in  this  section  provided. 
The  first  officers  chosen,  after  the  adoption  of  this  Constitu- 
tion, shall  be  elected  at  the  time  and  in  the  manner  now  pro- 
vided by  law.  Judicial  officers  and  the  superintendent  of 
public  instruction  shall  be  elected  at  the  time  and  in  the 
manner  that  state  officers  are  elected. 

ELECTIONS. — Suggested  but  not  decided  that  it  may  have  been, 
and  probably  was,  contemplated  by  the  framers  of  the  Constitution 
that,  when  the  legislature  should  provide  for  the  election  of  county, 
township,  and  municipal  officers,  it  would  require  such  election  to  be 
held  in  the  even-numbered  years;  but  whether  the  legislature  must 
do  so,  not  decided.     (Barton  v.  Kalloch,  56  Cal.  95.) 

This  section  refers  only  to  the  officers  mentioned  in  section  20, 
article  XX;  that  is,  only  to  officers  who  derive  their  right  to  hold 
office  immediately  from  the  Constitution;  and  does  not  refer  to  muni- 
cipal or  county  officers.     (Barton  v.  Kalloch,  56  Cal.  95.) 

Justices  of  the  peace  are  judicial  officers  within  the  meaning  of 
this  section,  and  must  be  elected  at  the  general  election.  (McGrew 
V.  Mayor  etc.  of  San  Jose,  55  Cal.  611;  People  v.  Eansom,  58  Cal. 
558.) 

A  police  judge,  though  a  judicial  officer,  is  also  a  municipal  officer, 
and  is  not  one  of  those  mentioned  in  this  section.  (People  v.  Henry, 
62  Cal.  557.) 

This  section  does  not  require  that  the  term  of  such  judicial  officers 
as  the  legislature  may  authorize  to  be  elected  shall  be  uniform 
throughout  the  state.  (Kahn  v.  Sutro,  114  Cal.  316,  33  L.  K.  A.  620, 
46  Pae.  87.) 

Laws  applicable  to  judicial  system. 

Sec.  11.  All  laws  relative  to  the  present  judicial  system 
of  the  state  shall  be  applicable  to  the  judicial  system 
created  by  this  Constitution  until  changed  by  legislation. 

JUDICIAL  SYSTEM. — The  several  courts  of  the  state  continued 
with  their  jurisdiction,  notwithstanding  the  adoption  of  the  amend- 
ments of  1862,  until  the  organization  of  the  new  courts  by  which  they 
were  to  be  superseded.     (Gillis  v.  Barnett,  38  Cal.  393.) 

Section  204  of  the  Code  of  Civil  Procedure  as  to  grand  juries  was 
continued  in  force  by  this  provision  of  the  Constitution.  (People  v. 
Currant,  116  Cal.  179,  48  Pac.  75.) 

The  justices  of  the  peace  of  the  city  and  county  of  San  Francisco 
provided  for  by  the  act  of  1866  were  continued  in  force  by  this  sec- 
tion, and  are  not  affected  by  the  County  Government  Act.     (Kahn  v. 


Art.  XXII,  §  12        CONSTITUTION  OF  1879.  606 

Sutro,  114  Ca].  316,  33  L.  E.  A.  620,  46  Pac.  87.     But  see  People  v. 
Cobb,  133  Cal.  74,  65  Pac.  325.) 

The  provision  of  the  fee  bill  of  1876,  so  far  as  it  provided  for  the 
fees  to  be  paid  to  the  clerk  of  the  district  court,  was  a  law  relating 
to  the  judicial  system  of  the  state,  and  was  kept  in  force  by  the  new 
Constitution,  and  made  applicable  to  the  courts  organized  thereunder. 
(People  V.  Hamilton,  103  Cal.  488,  37  Pac.  627.) 

This  section  continued  in  force  the  provision  for  the  drawing  of 
trial  jurors.     (People  v.  Eichards,  1  Cal.  App.  566,  82  Pac.  691.) 

The  superior  court  has  jurisdiction,  as  the  successor  of  the  district 
court,  to  entertain  proceedings  under  sections  312  and  315  of  the  Civil 
Code,  although  those  sections  mention  the  district  court.  (Wicker- 
sham  v.  Brittan,  93  Cal.  34,  15  L.  E.  A.  106,  28  Pac.  792,  29  Pac.  51.) 

The  power  of  appointing  police  commissioners,  vested  in  the  judges 
of  certain  district  courts  by  the  act  of  1878,  was  not  a  judicial  power, 
did  not  pertain  to  the  judicial  system  of  the  state,  and  did  not  de- 
volve upon  the  judges  of  the  superior  courts.  (Heinlen  v.  Sullivan, 
64  Cal.  378,  1  Pac.  158.) 

Under  this  section,  the  law  giving  the  district  court  power  to  fix 
the  compensation  of  phonographic  reporters  was  continued  in  force, 
and  made  applicable  to  superior  courts.  (Ex  parte  Eeis,  64  Cal.  233, 
30  Pac.  806.) 

Under  this  section,  the  law  regulating  appeals  from  justices'  courts 
to  the  county  courts  applied  to  appeals  to  the  superior  court.  (Cali- 
fornia Fruit  etc.  Co.  v.  Superior  Court,  60  Cal.  305.) 

The  clerk  of  the  superior  court  succeeding  to  a  district  court  has 
power,  without  a  previous  order  of  the  court,  to  issue  an  execution 
upon  a  judgment  of  the  district  court.     (Dorn  v.  Howe,  59  Cal.  129.) 

The  statute  providing  for  the  drawing  of  jurors  in  the  presence  of 
the  county  judge,  clerk  and  sheriff  was  not  superseded  by  the  Consti- 
tution, since  the  superior  judge  would  either  succeed  to  the  duty  of 
the  county  judge,  or,  there  being  no  county  judge,  the  presence  of 
the  clerk  and  sheriff  would  be  sufficient.  (People  v.  Gallagher  55 
Cal.  462.)  ' 

Constitution,  when  to  take  effect. 

Sec.  12.  This  Constitution  shall  take  effect  and  be  in 
force  on  and  after  the  fourth  day  of  July,  eighteen  hundred 
and  seventy-nine,  at  twelve  o'clock  meridian,  so  far  as  the 
same  relates  to  the  election  of  all  officers,  the  commence- 
ment of  their  terms  of  office,  and  the  meeting  of  the  legis- 
lature. In  all  other  respects,  and  for  all  other  purposes, 
this  Constitution  shall  take  effect  on  the  first  day  of 
January,  eighteen  hundred  and  eighty,  at  twelve  o'clock 
meridian. 


607.  RECALL  OF  OFFICERS.  Aft.  XXIII,  §  1 

ARTICLE  XXIII. 

EECALL  OF  OFFICERS. 

Section  1.  Every  elective  public  officer  of  the  state  of 
California  may  be  removed  from  office  at  any  time  by  the 
electors  entitled  to  vote  for  a  successor  of  such  incumbent, 
through  the  procedure  and  in  the  manner  herein  provided 
for,  which  procedure  shall  be  known  as  the  recall,  and  is  in 
addition  to  any  other  method  of  removal  provided  by  law. 

The  procedure  hereunder  to  effect  the  removal  of  an  in- 
cumbent of  an  elective  public  office  shall  be  as  follows:  A 
petition  signed  by  electors  entitled  to  vote  for  a  successor 
of  the  incumbent  sought  to  be  removed,  equal  in  number 
to  at  least  twelve  per  cent  of  the  entire  vote  east  at  the 
last  preceding  election  for  all  candidates  for  the  office 
which  the  incumbent  sought  to  be  removed  occupies  (pro- 
vided that  if  the  officer  sought  to  be  removed  is  a  state 
officer  who  is  elected  in  any  political  subdivision  of  the 
state,  said  petition  shall  be  signed  by  electors  entitled  to 
vote  for  a  successor  to  the  incumbent  sought  to  be  removed, 
equal  in  number  to  at  least  twenty  per  cent  of  the  entire 
vote  cast  at  the  last  preceding  election  for  all  candidates  for 
the  office  which  the  incumbent  sought  to  be  removed  occupies) 
demanding  an  election  of  a  successor  to  the  officer  named 
in  said  petition,  shall  be  addressed  to  the  secretary  of  state 
and  filed  with  the  clerk,  or  registrar  of  voters,  of  the  county 
or  city  and  county  in  which  the  petition  was  circulated; 
provided  that  if  the  officer  sought  to  be  removed  was 
elected  in  the  state  at  large  such  petition  shall  be  circulated 
in  not  less  than  five  counties  of  the  state,  and  shall  be 
signed  in  each  of  such  counties  by  electors  equal  in  number 
to  not  less  than  one  per  cent  of  the  entire  vote  cast,  in  each 
of  said  counties,  at  said  election,  as  above  estimated.  Such 
petition  shall  contain  a  general  statement  of  the  grounds 
on  which  the  removal  is  sought,  which  statement  is  intended 
solely  for  the  information  of  the  electors,  and  the  sufficiency 
of  which  shall  not  be  open  to  review. 

When  such  petition  is  certified  as  is  herein  provided  to 
the  secretary  of  state,  he  shall  forthwith  submit  the  said 


Art.  XXIII,  §  1        CONSTITUTION  OF  1879.  608 

petition,  together  with  a  certificate  of  its  sufficiency,  to 
the  governor,  who  shall  thereupon  order  and  fix  a  date  for 
holding  the  election,  not  less  than  sixty  days  nor  more 
than  eighty  days  from  the  date  of  such  certificate  of  the  secre- 
tary of  state. 

The  governor  shall  make  or  cause  to  be  made  publication 
of  notice  for  the  holding  of  such  election,  and  officers 
charged  by  law  with  duties  concerning  elections  shall  make 
all  arrangements  for  such  election  and  the  same  shall  be 
conducted,  returned,  and  the  result  thereof  declared,  in  all 
respects  as  are  other  state  elections.  On  the  official  ballot 
at  such  election  shall  be  printed,  in  not  more  than  two  hun- 
dred words,  the  reasons  set  forth  in  the  petition  for  demand- 
ing his  recall.  And  in  not  more  than  three  hundred  words 
there  shall  also  be  printed,  if  desired  by  him,  the  officer's 
justification  of  his  course  in  office.  Proceedings  for  the 
recall  of  any  officer  shall  be  deemed  to  be  pending  from  the 
date  of  the  filing  with  any  county,  or  city  and  county  clerk, 
or  registrar  of  voters,  of  any  recall  petition  against  such 
officer;  and  if  such  officer  shall  resign  at  any  time  subse- 
quent to  the  filing  thereof,  the  recall  election  shall  be  held 
notwithstanding  such  resignation,  and  the  vacancy  caused 
by  such  resignation,  or  from  any  other  cause,  shall  be  filled 
as  provided  by  law,  but  the  person  appointed  to  fill  such 
vacancy  shall  hold  his  office  only  until  the  person  elected 
at  the  said  recall  election  shall  qualify. 

Any  person  may  be  nominated  for  the  office  which  is  to 
be  filled  at  any  recall  election  by  a  petition  signed  by  elec- 
tors, qualified  to  vote  at  such  recall  election,  equal  in  num- 
ber to  at  least  one  per  cent  of  the  total  number  of  votes 
cast  at  the  last  preceding  election  for  all  candidates  for 
the  office  which  the  incumbent  sought  to  be  removed  occu- 
pies. Each  such  nominating  petition  shall  be  filed  with 
the  secretary  of  state  not  less  than  twenty-five  days  before 
such  recall  election. 

There  shall  be  printed  on  the  recall  ballot,  as  to  every 
officer  whose  recall  is  to  be  voted  on  thereat,  the  following 
question :  "Shall  (name  of  person  against  whom  the  recall 
petition  is  filed)  be  recalled  from  the  office  of  (title  of  the 


609  RECALL  OF  OFFICERS.  Art.  XXIII,  §  1 

office)  ?",  following  which  question  shall  be  the  words 
"Yes"  and  "No"  on  separate  lines,  with  a  blank  space  at 
the  right  of  each,  in  which  the  voter  shall  indicate,  by 
stamping  a  cross  (X),  his  vote  for  or  against  such  recall. 
On  such  ballots,  under  each  such  question,  there  shall  also 
be  printed  the  names  of  those  persons  who  have  been  nomi- 
nated as  candidates  to  succeed  the  person  recalled,  in  case 
he  shall  be  removed  from  office  by  said  recall  election;  but 
no  vote  cast  shall  be  counted  for  any  candidate  for  said 
office  unless  the  voter  also  voted  on  said  question  of  the 
recall  of  the  person  sought  to  be  recalled  from  said  office. 
The  name  of  the  person  against  whom  the  petition  is  filed 
shall  not  appear  on  the  ballot  as  a  candidate  for  the  office. 
If  a  majority  of  those  voting  on  said  question  of  the  recall 
of  any  incumbent  from  office  shall  vote  "No,"  said  incum- 
bent shall  continue  in  said  office.  If  a  majority  shall  vote 
"Yes,"  said  incumbent  shall  thereupon  be  deemed  removed 
from  such  office,  upon  the  qualification  of  his  successor. 
The  canvassers  shall  canvass  all  votes  for  candidates  for 
said  office  and  declare  the  result  in  like  manner  as  in  a 
regular  election.  If  the  vote  at  any  such  recall  election 
shall  recall  the  officer,  then  the  candidate  who  has  received 
the  highest  number  of  votes  for  the  office  shall  be  thereby 
declared  elected  for  the  remainder  of  the  term.  In  case 
the  person  Avho  received  the  highest  number  of  votes  shall 
fail  to  qualify  within  ten  days  after  receiving  the  certifi- 
cate of  election,  the  office  shall  be  deemed  vacant  and  shall 
be  filled  according  to  law. 

Any  recall  petition  may  be  presented  in  sections,  but 
each  section  shall  contain  a  full  and  accurate  copy  of  the 
title  and  text  of  the  petition.  Each  signer  shall  add  to  his 
signature  his  place  of  residence,  giving  the  street  and  num- 
ber, if  such  exist.  Ilis  election  precinct  shall  also  appear 
on  the  paper  after  his  name.  The  number  of  signatures 
appended  to  each  section  shall  be  at  the  pleasure  of  the 
person  soliciting  signatures  to  the  same.  Any  qualified 
elector  of  the  state  shall  be  competent  to  solicit  such  sig- 
natures within  the  county,  or  city  and  county,  of  which 

Constitution — 39 


Art.  XXIII,  §  1        CONSTITUTION  OF  1879.  610 

he  is  an  elector.  Each  section  of  the  petition  shall  bear 
the  name  of  the  county,  or  city  and  county  in  Avhich  it  is 
circulated,  and  only  qualified  electors  of  such  county  or 
city  and  county  shall  be  competent  to  sign  such  section. 
Each  section  shall  have  attached  thereto  the  affidavit  of 
the  person  soliciting  signatures  to  the  same  stating  his 
qualifications  and  that  all  the  signatures  to  the  attached 
section  were  made  in  his  presence  and  that  to  the  best  of 
his  knowledge  and  belief  each  signature  to  the  section  is 
the  genuine  signature  of  the  person  whose  name  it  pur- 
ports to  be;  and  no  other  affidavit  thereto  shall  be  required. 
The  affidavit  of  any  person  soliciting  signatures  hereunder 
shall  be  verified  free  of  charge  by  any  officer  authorized 
to  administer  an  oath.  Such  petition  so  verified  shall  be 
prima  facie  evidence  that  the  signatures  thereto  appended 
are  genuine  and  that  the  persons  signing  the  same  are 
qualified  electors.  Unless  and  until  it  is  otherwise  proven 
upon  official  investigation,  it  shall  be  presumed  that  the 
petition  presented  contains  the  signatures  of  the  requisite 
number  of  electors.  Each  section  of  the  petition  shall  be 
filed  with  the  clerk,  or  registrar  of  voters,  of  the  county 
or  city  and  county  in  which  it  was  circulated;  but  all  such 
sections  circulated  in  any  county  or  city  and  county  shall 
be  filed  at  the  same  time.  Within  twenty  days  after  the 
date  of  the  filing  of  such  petition,  the  clerk,  or  registrar 
of  voters,  shall  finally  determine  from  the  records  of  regis- 
tration what  number  of  qualified  electors  have  signed  the 
same ;  and,  if  necessary,  the  board  of  supervisors  shall  allow 
such  clerk  or  registrar  additional  assistants  for  the  purpose 
of  examining  such  petition  and  provide  for  their  compen- 
sation. The  said  clerk  or  registrar,  upon  the  completion 
of  such  examination,  shall  forthwith  attach  to  such  petition 
his  certificate,  properly  dated,  showing  the  result  of 
such  examination,  and  submit  said  petition,  except  as  to 
the  signatures  appended  thereto,  to  the  secretary  of 
state  and  file  a  copy  of  said  certificate  in  his  office.  Within 
forty  days  from  the  transmission  of  the  said  petition 
and  certificate  by  the  clerk  or  registrar  of  voters  to 
the  secretary  of  state,   a  supplemental  petition,   identical 


I 


611  RECALL  OF   OFFICERS.  Art.  XXIII,  §   1 

with  the  original  as  to  the  body  of  the  petition  but  con- 
taining supplemental  names,  may  be  filed  with  the  clerk 
or  registrar  of  voters,  as  aforesaid.  The  clerk  or  registrar 
of  voters  shall  within  ten  days  after  the  filing  of  such  sup- 
plemental petition  make  like  examination  thereof  as  of  the 
original  petition,  and  upon  the  conclusion  of  such  examina- 
tion shall  forthwith  attach  to  such  petition  his  certificate, 
properly  dated,  showing  the  result  of  such  examination, 
and  shall  forthwith  transmit  such  supplemental  petition, 
except  as  to  the  signatures  thereon,  together  with  his  saia 
certificate,  to  the  secretary  of  state. 

When  the  secretary  of  state  shall  have  received  from  one 
or  more  county  clerks,  or  registrars  of  voters,  a  petition 
certified  as  herein  provided  to  have  been  signed  by  the 
requisite  number  of  qualified  electors,  he  shall  forthwith 
transmit  to  the  county  clerk  or  registrar  of  voters  of  every 
county  or  city  and  county  in  the  state  a  certificate  showing 
such  fact ;  and  such  clerk  or  registrar  of  voters  shall  there- 
upon file  said  certificate  for  record  in  his  office. 

A  petition  shall  be  deemed  to  be  filed  with  the  secretary 
of  state  upon  the  date  of  the  receipt  by  him  of  a  certificate 
or  certificates  shoM'ing  the  said  petition  to  be  signed  by  the 
requisite  number  of  electors  of  the  state. 

No  recall  petition  shall  be  circulated  or  filed  against  any 
officer  until  he  has  actually  held  his  office  for  at  least  six 
months ;  save  and  except  it  may  be  filed  against  any  mem- 
ber of  the  state  legislature  at  any  time  after  five  days  from 
the  convening  and  organizing  of  the  legislature  after  his 
election. 

If  at  any  recall  election  the  incumbent  whose  removal  is 
sought  is  not  recalled,  he  shall  be  repaid  from  the  state 
treasury  any  amount  legally  expended  by  him  as  expenses 
of  such  election,  and  the  legislature  shall  provide  appro- 
priation for  such  purpose,  and  no  proceedings  for  another 
recall  election  of  such  incumbent  shall  be  initiated  Avithin 
six  months  after  such  election. 

If  the  governor  is  sought  to  be  removed  under  the  provi- 
sions of  this  article,  the  duties  herein  imposed  upon  him 
shall  be  performed  by  the  lieutenant-governor;  and  if  the 


Art.  XXIII,  §  1        CONSTITUTION  OP  1879.  G12 

secretary  of  state  is  sought  to  be  removed,  the  duties  herein 
imposed  upon  him  shall  be  performed  by  the  state  con- 
troller; and  the  duties  herein  imposed  upon  the  clerk  or 
registrar  of  voters  shall  be  performed  by  such  registrar  of 
voters  in  all  cases  where  the  office  of  registrar  of  voters 
exists. 

The  recall  shall  also  be  exercised  by  the  electors  of  each 
county,  city  and  county,  city  and  town  of  the  state,  with 
reference  to  the  elective  officers  thereof,  under  such  pro- 
cedure as  shall  be  provided  by  law. 

Until  otherwise  provided  by  law,  the  legislative  body  of 
any  such  county,  city  and  county,  city  or  town  may  provide 
for  the  manner  of  exercising  such  recall  powers  in  such 
counties,  cities  and  counties,  cities  and  towns,  but  shall  not 
require  any  such  recall  petition  to  be  signed  by  electors 
more  in  number  than  twenty-five  per  cent  of  the  entire  vote 
cast  at  the  last  preceding  election  for  all  candidates  for 
the  office  which  the  incumbent  sought  to  be  removed  occu- 
pies. Nothing  herein  contained  shall  be  construed  as  af- 
fecting or  limiting  the  present  or  future  powers  of  cities  or 
counties  or  cities  and  counties  having  charters  adopted 
under  the  authority  given  by  the  Constitution. 

In  the  submission  to  the  electors  of  any  petition  proposed 
under  this  article  all  officers  shall  be  guided  by  the  general 
laws  of  the  state,  except  as  otherwise  herein  provided. 

This  article  is  self-executing,  but  legislation  may  be  en- 
acted to  facilitate  its  operation,  but  in  no  way  limiting  or 
restricting  the  provisions  of  this  article  or  the  powers  herein 
reserved.     (Amendment  approved  October  10,  1911.) 

THE  KECALIf. — The  fixing  of  the  tenure  of  office  of  the  officers  of 
a  municipality,  subject  to  removal  by  the  body  that  elected  them,  is 
comparatively  new  in  our  system  of  government,  and  the  interpretive 
branch  of  the  law  is  in  rather  an  undeveloped  state.  (Good  v.  Com- 
mon Council  of  San  Diego,  5  Cal.  App.  265,  90  Pac.  44.) 

Where  a  municipal  charter  provides  that  the  holder  of  any  elective 
office  may  be  removed  at  any  time  by  the  electors  qualified  to  vote 
for  a  successor,  the  charter  does  not  contemplate  an  ordinary  "re- 
moval for  cause,"  but  by  virtue  of  the  charter  provisions,  every  elec- 
tive officer  elected  after  the  provision  was  adopted  holds  his  office 
subject  to  the  condition  subsequent  expressed  therein.  (Good  v. 
Common  Council  of  San  Diego,  5  Cal.  App.  265,  90  Pac.  44.) 


613 


RECALL  OF  OFFICERS, 


Art.  XXIII,  §  1 


The  recall  provision  is  valid.  The  appellant  accepted  the  trust 
subject  to  this  power  in  his  constituency,  and  the  duration  of  his 
term  of  office  is  dependent  upon  the  wish  of  the  majority  as  expressed 
at  the  polls.  (Hilzinger  v,  Gillman,  56  Wash.  228,  21  Ann.  Cas.  305, 
lOo  Pac.  471.) 

The  provision  in  Statutes  (Mass.)  1908,  p.  542,  c.  574,  amending  the 
charter  of  the  city  of  Haverhill,  which  requires  officers  to  accept 
office  of  uncertain  terms,  with  liability  to  be  recalled  at  any  time 
without  just  cause,  is  not  unconstitutional.  (Graham  v.  Roberts,  200 
Mass.  152,  85  N.  E.  1009.) 

"It  is  contended  that  the  recall  provision  of  the  charter"  of  Dallas 
"seeks  to  substitute  within  the  municipality  a  socialistic  and  com- 
munistic system  of  government  in  lieu  of  a  republican  form  of  gov- 
ernment— we  do  not  concur  in  this  contention.  It  is  neither  social- 
istic, communistic,  nor  obnoxious  to  a  republican  form  of  government 
to  require  an  elective  officer  of  a  municipal  government  to  submit 
to  the  voters  of  the  city  the  issue  for  their  determination  whether  he 
shall  longer  continue  in  office."  (Bonner  v.  Besterling  (Tex.  Civ.), 
137  S.  W.  1154.) 

J.  P.  HOGE, 
President. 
Attest :  Edwin  F.  Smith^  Secretary. 


A.  R.  Andrews. 
James  J.  Ayers, 
Clitus  Barbour, 
Edward  Barry, 
James  N.  Barton, 
C.  J.  Beerstecher, 
Isaac  S.  Belcher, 
Peter  Bell, 
Marion  Biggs, 
E.  T.  Blackmer, 
Joseph  C.  BroAvn, 
Saml.  B.  Burt, 
Josiah  Boucher, 
James  Caples, 
Aug.  H.  Chapman, 
J.  M.  Charles, 
John  D.  Condon, 
C.  W.  Cross, 
Hamlet  Davis, 
Jas  E.  Dean, 
P.  T.  Dowling, 


Luke  D.  Doyle, 

W.  L.  Dudley, 

Jonathan  M.  Dudley, 

Presley  Dunlap, 

John  Eagon, 

Thomas  H.  Estey, 

Henry  Edgerton, 

M.  M.  Estee, 

Edward  Evey, 

J.  A,  Filcher, 

Simon  J.  Farrell, 

Abraham  Clark  Freeman, 

Jacob  Richard  Freud, 

J.  B.  Garvey, 

B.  B.  Glasscock, 

Joseph  C.  Gorman, 

W.  P.  Grace, 

"William  J.  Graves, 

V.  A.  Gregg, 

Jno.  S.  Hager, 

John  B.  Hall, 


CONSTITUTION  OF  1879. 


614 


Thomas  Harrison, 

Joel  A.  Harvey, 

T.  D.  Heiskell, 

Conrad  Herold, 

D.  W.  Herrington, 

S.  G.  Hilborn, 

J.  R.  W.  Hitchcock, 

J.  E.  Hale. 

Volney  E.  Howard, 

Sam  A.  Holmes, 

W.  J.  Howard, 

Wm.  Proctor  Hughey, 

W.  F.  Huestis, 

G.  W.  Hunter, 

Daniel  Innian, 

George  A.  Johnson, 

L.  F.  Jones, 

Peter  J.  Joyce, 

J.  M.  Kelley, 

James  H.  Keyes, 

John  J.  Kenny, 

C.  R.  Kleine, 

T.  H.  Laine, 

Henry  Larkin, 

R.  M.  Lampson, 

R.  Lavigne, 

H.  M.  La  Rue, 

David  Lewis, 

J.  F.  Lindow, 

Jno.  Mansfield, 

Edward  Martin, 

J.  West  Martin, 

Rush  McComas, 

John  G.  McCallum, 

Thomas  McConnell, 

John  McGoy, 

Thomas  B.  McFarland, 

Hiram  Mills, 

Wm.  S.  Moffatt, 


John  Fleming  McNutt, 

W.  W.  Moreland, 

L.  D.  Morse, 

James  E.  Murphy, 

Edmund  Nason, 

Thorwald  Klaudius  Nelson, 

Henry  Neunaber, 

Chas.  C.  O'Donnell, 

George  Ohleyer, 

James  O'Sullivan, 

James  Martin  Porter, 

William  H.  Prouty, 

M.  R.  C.  Pulliam, 

Chas.  F.  Reed, 

Patrick  Reddy, 

Jno.  M.  Rhodes, 

Jas.  S.  Reynolds, 

Horace  C.  Roife, 

Chas.  S.  Ringgold, 

James  McM.  Shafter, 

Geo.  W.  Schell, 

J.  Schomp, 

Rufus  Shoemaker, 

E.  0.  Smith, 

Benj.  Shurtleff, 

Geo.  Yenable  Smith, 

H.  W.  Smith, 

John  C.  Stedman, 

E.  P.  Soule, 

D.  C.  Stevenson, 
Geo.  Steele, 
Chas.  V.  Stuart, 
W.  J.  Sweasey, 
Charles  Swenson, 
R.  S.  Swing, 
D.  S.  Terry, 
S.  B.  Thompson, 

F.  0.  Townsend, 
W.  J.  Tinnin, 


615 


SIGNERS. 


» 


Daniel  Tuttle, 
P.  B.  Tully, 
H.  K.  Turner, 
A.  P.  Vacquerel, 
Walter  Van  Dyke, 
Wm.  Van     Voorhies, 
Hugh  Walker, 
Jno.  Walker, 
Byron  Waters, 


Joseph  R.  Weller, 
J.  V.  Webster, 
John  P.  West, 
Patrick  M.  Wellin, 
John  T.  Wiekes, 
Wra.  F.  White, 
H.  C.  Wilson, 
Jos.  W.  AVinans, 
N.  G.  Wyatt. 


TABLE  OF  STATUTES 

DECLARED  UNCONSTITUTIONAL 

IN  WHOLE  OR  IN  PART. 


statutes 

Page 

Chap 

1850 

93 

33 

176 

71 

205 

85 

210 

86 

254 

103 

275 

119 

428 

142 

1851 

9 

1 

er  Case 

Caulfield  v.  Hudson,  3  Cal.  389. 
Burgoyne  v.  Board  of  Supervisors,  5  Cal,  9. 
People  V.  Burbank,  12  Cal.  378. 
Burgoyne  v.  Board  of  Supervisors,  5  Cal.  9. 
George  v.  Ransom,  13  Cal.  322,  76  Am.  Dec.  490. 
People  V.  Tinder,  19  Cal.  539,  81  Am.  Dec.  77. 
In  re  Holdforth,  1  Cal.  438. 

Parsons  v.  Tuolumne  etc.  Co.,  5  Cal.  43,  63  Am. 
Dec.  76;  Zander  v.  Coe,  5  Cal.  230. 
51  5     Tay  v.  Hawley,  39  Cal.  93;  Exline  v.  Smith,  5 

Cal.  112;  Crawford  v.  The  Caroline  Keed,  42 
469. 
387  88     Smith  v.  Morse,  2  Cal.  524. 

1852  78  36     State   v.    Steamship    Constitution,   42   Cal.   578, 

10  Am.  Rep.  303. 
162  87     People  v.  Wells,  2  Cal.  198,  610. 

233         146     People  v.  Rosborough,  14  Cal.  180. 

1853  71  51     State   r.   Steamship   Constitution,  42   Cal.   578, 

10  Am.  Rep.  303. 
219         160     Guy  v.  Hermance,  5  Cal.  73,  63  Am.  Dee.  85. 
233         167     Hardenburgh  v.  Kidd,  10  Cal.  402. 

1854  84  78     Houston  v.  Williams,  13  Cal.  24,  73  Am.  Dec. 

565. 
198         128     Dickey  v.  Hurlburt,  5  Cal.  343. 

1855  80  73     Greely  v.  Townsend,  25  Cal.  604. 
145         119     Gillan  v.  Hutchinson,  16  Cal.  153. 
160         131     Stone  v.  Elkins,  24  Cal.  125. 

165         138     Robinson  v.  Magee,  9  Cal.  81,  70  Am.  Dec.  638. 

180         145     People  v.  Johnson,  6  Cal.  499. 

299         229     Deck's  Estate  v.  Gherke,  6  Cal.  666. 

1856  54  47     Billings  v.  Hall,  7  Cal.  1. 
100  85     People  v.  Brooks,  16  Cal.  11. 
110           95     Nougues  v.  Douglass,  7  Cal.  65. 

145         125     People  v.  Woods,  7  Cal.  579;  People  v.  Bond, 
10   Cal.   563;   Taylor  v.  Palmer,   31   Cal.   240. 

1857  222         192     People  v.   Templeton,  12  Cal.  394. 

1858  32  43     McCauley  v.  Weller,  12  Cal.  500. 

124         171     Ex  parte  Newman,  9  Cal.  502;  contra,  Ex  parte 

Andrews,  18  Cal.  678. 
254         288     San  Francisco  v.  Spring  Valley  W.  W.,  48  Cal. 

493. 
305         319     Brumagim  v.  Tillinghast,   18   Cal.   265,   79  Am. 

Dee.   176. 
322         336     Grogan  v.  San  Francisco,  18  Cal.  590. 
(617) 


618  UNCONSTITUTIONAL    STATUTES. 

Statutes    Page    Chapter  Case 

1859  343         315     People    v.    McCreery,    34    Cal.    432;    People    v. 

Gerke,  35  Cal.  677. 

1862  462         339     Lin  Sing  v.  Washburn,  20  Cal.  534. 
539         416     Peopje  \.  Eaymond,  34  Cal.  492. 

1863  69  70     People  v.  Washington,  36  Cal.  658. 
145         125     Crosby  v.  Lyon,  37  Cal.  242. 

549  355  Bourland  v.  Hildreth,  26  Cal.  161. 

586  395  Caulfield  v.  Stevens,  28  Cal.  118. 

1864  198  204  People  v.  Sanderson,  30  Cal.  160. 
431  383  Day  v.  Jones,  31  Cal.  261. 

1865-66     689         528     People  v.  Kelsey,  34  Cal.  470. 

786         565     People    v.    McCreery,    34    Cal.    432;    People    v. 

Gerke,  35  Cal.  677. 
824         596     Pryor  v.  Downey,  50  Cal.  388,  19  Am.  Rep.  656. 
1867-68     159         181     Waterloo  T.  R.  Co.  v.  Cole,  51  Cal.  381, 
176         196     Eose  v.  Estudillo,  39  Cal.  270. 
316         293     Wilson  v.  Supervisors,  47  Cal.  91. 
1869-70     626         434     In  re  Market  St.,  49  Cal.  o4'6. 
1871-72     243         204     Smith    v.    Brown,   59    Cal.    672;    People   v.   Ed- 
wards, 93  Cal.  153,  28  Pac.  831. 
415         308     Williams  v.  Corcoran,  46  Cal.  553. 
443         334     Chollar  M.  Co.  v.  Wilson,  66  Cal.  374,  5  Pac. 

670. 
773         536     Savings  etc.  Soc.  v.  Austin,  46  Cal.  415. 
1873-74       50  54     Young   v.   Wright,   32   Cal.   407;    Sutherland   v. 

Sweem,  53  Cal.  48. 
320         453     Weber  v.  Board   of   Suprs.   of  Santa  Clara,   59 
Cal.  265. 
People  V.  Townsend,  56  Cal.  633. 
Ex  parte  Wall,  48  Cal.  279,  17  Am.  Rep.  425. 
People   V.  Pittsburg  R.   R.   Co.,   67   Cal.   625,  8 
Pac.  381. 
588         414     Reis   v.   Graff,  31   Cal.   86;   Brady  v.   King,   53 
Cal.  44. 
People  V.  Lynch,  51  Cal.  15,  21  Am.  Rep.  677. 
Harper  v.  Rowe,  53  Cal.  233. 
Harper  v.  Rowe,  53  Cal.  233. 
People  V.  Lynch,  51  Cal.  15,  21  Am.  Rep.  677. 
1875-76       82         114     Spring  Valley  W.  W.  v.  Bryant,  52  Cal,  132. 
People  V.  Houston,  54  Cal.  536. 
Hoagland  v.  Sacramento,  52  CaL  142. 
Montgomery  Avenue  Case,  54  Cal.  579, 
1877-78     181         138     Knox    v.    Board     of     Suprs.    of    Los    Angeles 
County,  58  Cal.  59. 
Fanning  v.  Schammel,  68  Cal,  428,  9  Pac,  427. 
Schumacher  v.  Toberman,  56  Cal.  508, 
Purdy  V.  Sinton,  56  Cal.  133. 
Boorman  v.  Santa  Barbara,  65  Cal,  313,  4  Pac. 
31. 


376 

273 

434 

300 

477 

331 

691 

460 

746 

511 

832 

595 

896 

645 

82 

114 

140 

137 

214 

190 

753 

495 

181 

138 

341 

282 

419 

317 

442 

333 

777 

501 

UNCONSTITUTIONAL    STATUTES.  619 

Statutes    Page    Chapter  Case 

1880  1  1     Weill  V.  Kenfield,  34  Cal.  111. 

20  26     San   Francisco   v.    Broderick,    125   Cal.    188,   57 

Pac.  887. 
55  63     Hutson  v.  Woodbridge  Protection  Dist.,  79  Cal. 

90,  16  Pac.  549,  21  Pac.  435. 
67  71     People  v.  Chapman,  61  Cal.  262. 

80  84     Ex  parte  Westerfield,  55  Cal.  550,  36  Am.  Rep. 

47. 
119         109     Bixler's  Appeal,  39  Cal.  550;  Bixler  v.  Board  of 
Suprs.    of    Sacramento    County,    59   Cal.    698. 
(Decision  of  Superior  Court.) 
Tn  re  Ah  Chong,  5  Pac.  C.  L.  J.  451. 
Doane  v.  Weil,  58  Cal.  334;  People  v.  Parks,  58 
Cal.   624;   Callahan  v.  Dunn,   78   Cal.   366,   20 
Pac.  737. 
Krause  v.  Durbrow.   127  Cal.  681,  60  Pac.  438. 
Desmond  v.  Dunn,  55  Cal.  242. 
Leonard  v.  January,  56  Cal.  1;   Dillon  v.  Bick- 
nell,  116  Cal.  Ill,  47  Pac.  937. 

1881  15  21     Nickey   v.   Stearns   Ranches   Co.,   126   Cal.   150, 
58  Pac.  459. 

Ex  parte  Cox,  63  Cal.  21. 

Fitch  V.  Board  of  Supervisors,  122  Cal.  285,  54 
Pac.  901;  Hatfield  v.  People's  Water  Co.,  25 
Cal.  App.  502,   144  Pac.  300. 
People  V.  Chapman,  61  Cal.  262. 
1883  34  30     People  v.  Kewen,  69  Cal.  215,  10  Pac.  393. 

Tulare  v.  Hevren,  126  Cal.  226,  58  Pac.  530. 
Los  Angeles  v.  Teed,  112  Cal.  319,  44  Pac.  580. 
1885  13  15     San    Francisco    v.    Liverpool    etc.    Ins.    Co.,    74 

Cal.  113,  5  Am.  St.  Rep.  425,  15  Pac.  380. 
45  39     Western  Granite  etc.  Co.  v.  Knickerbocker,  103 

Cal.  111.  37  Pac.  192. 
166         154     Miller  v.  Kister,  68  Cal.  142,  8  Pac.  813;   Peo- 
ple V.  Henshaw,  76  Cal.  436,  18  Pac.  413. 
203         157     People  v.  Kewen,  69  Cal.  215,  10  Pac.  393. 
1887  178         169     Dougherty  v.  Austin,  94  Cal.  601,  28  Pac.  834, 

16  L.  R.  A.  161,  29  Pac.  1092. 
1889  3  5     Schaezlein   v.    Cabaniss,   135    Cal.   466,   87   Am. 

St.  Rep.  122,  56  L.  R.  A.  733,  67  Pac.  755. 
148         138     Farrell   v.   Board   of   Trustees,   85   Cal,   408,   24 

Pac.  868. 
212         178     Cullen  v.  Glendora  Water  Co.,  113  Cal.  503,  39 

Pac.  769,  45  Pac.  822,  1047. 
232         206     San  Luis  Obispo  County  v.  Graves,  84  Cal.  71, 

23  Pac.  1032. 
302         207     People  v.  Common  Council,  85  Cal.  369,  24  Pac. 
727;  Fisher  v.  Police   Court,  86   Cal.   158,  24 
Pac.  1000. 
435  1     People  v.  Toal,  85  Cal.  333,  24  Pac.  603. 


123 

116 

123 

117 

131 

118 

137 

124 

527 

244 

(Ban.) 

15 

21 

51 

51 

54 

52 

81 

71 

34 

30 

93 

49 

370 

82 

13 

15 

283 

205 

295 

216 

433 

226 

450 

231 

620  UNCONSTITUTIONAL   STATUTES. 

Statutes  Page    Chapter  Case 

1891  5  7     San   Francisco    v.   Broderick,    125    Cal.   188,   57 

Pac.  887. 
182         137     McCabe  v.  Carpenter,  102  Cal.  469,  36  Pac.  836. 
195         146     Slocum  v.  Bear  Valley  Irr.  Co.,  122  Cal.  55o,  68 
Am.  St.  Rep.  68,  55  Pac.  403;  Keener  v.  Eagle 
Lake  etc.  Co.,  110  Cal.  627,43  Pac.  14;  Ackley 
V.  Black  Hawk  etc.  Min.  Co.,  112  Cal.  42,  44 
Pac.  330. 
Murray  v.  Colgan,  94  Cal.  435,  29  Pac.  871. 
People   V.   Johnson,   95   Cal.   471,   31   Pac.   611; 
Welsh   V.   Bramlet,   98   Cal.   219,  33   Pac.   66; 
Bloss  V.  Lewis,  109  Cal.  493,  41  Pac.  1081. 
Ex  parte  Giambonini,  117  Cal.  573,  49  Pac.  732 
Patty  V.  Colgan,  97  Cal.  251,  18  L.  R.  A.  744,  31 
Pac.  1133. 
513         279     Bourn  v.  Hart,  93  Cal.  321,  27  Am.  St.  Rep.  203, 

±5  L.  R.  A.  431,  28  Pac.  951, 
313         280     Conlin  v.  Board   of  Supervisors,  99  Cal.  17,  37 
Am.  St.  Rep.  17,  21  L.  R.  A.  474,  33  Pac.  753, 
1893  12  16     Bradley  v.  Clark,  133  Cal.  196,  65  Pac.  395. 

Ramish  v.  Hartwell,  126  Cal.  443,  58  Pac.  920. 
Molineux  v.  State,  109  Cal.  378,  50  Am.  St.  Rep, 

49,  42  Pac.  34. 
Los  Angeles  v.  Teed,  112  Cal.  319,  44  Pac.  580. 
City  of  Los  Angeles  v.  Hance,  122  Cal.  77,  54 

Pac.  387. 
Rauer  v.  Williams,  118  Cal.  401,  50  Pac.  691. 
People  V.  Markham,  104  Cal.  232,  37  Pac.  918. 
Merchants'  Nat.  Bank  v.  Escondido  Irr.  Dist., 
144  Cal.  329,  77  Pac.  937. 
229         188     Provident   etc.   Loan   Assn.   v.   Davis,    143    Cal. 

253,  76  Pac.  1034. 
280         197     Darcy  v.  Mayor  of  San  Jose,  104  Cal.  642,  38 

Pac.  500. 
346         234     Hale  v.  McGettigan,  114  Cal.  112,  45  Pac.  1049; 
Knight  v.  Martin,  128  Cal.  245,  60  Pac.  849. 
1895  1  2     Dwyer  v.  Parker,  115  Cal.  544,  47  Pac.  372. 

Sixth  Dist.  Agr.  Assn.  v.  Wright,  154  Cal.  119, 

97  Pac.  144. 
Taylor  v.  Mott,  123  Cal.  497,  56  Pac.  256. 
Rauer  v.  Williams,  118  Cal.  401,  50  Pac.  691, 
Miner  v.  Justice's  Court,  121  Cal.  264,  53  Pac. 
795. 
207         181     Marsh  v.  Hanly,  111  Cal.  368,  43  Pac.  975;  Gett 
v.  Board  of  Supervisors,  111  Cal.  366,  43  Pac. 
1122, 
238         193     Sullivan  v.  Gage,  145  Cal.  759,  79  Pac.  537. 
246         200     Ex  parte  Jentzsch,  112  Cal.  468,  32  L.  R.  A.  664, 

44  Pac.  803. 
267         207     Fatjo    v.    Pfister,    117    Cal.    83,    48    Pac.    1012; 
Dwyer  v.  Parker,  115  Cal.  544,  47  Pac.  372; 


12 

16 

33 

21 

57 

45 

59 

47 

61 

48 

127 

112 

168 

143 

175 

148 

1 

2 

14 

8 

107 

115 

164 

160 

205 

178 

54 

60 

72 

78 

75 

82 

135 

107 

192 

132 

231 

170 

UNCONSTITUTIONAL    STATUTES.  621 

Statutes   Page    Chapter  Case 

1895  267         207.     Cooley  v.  Calaveras  Co.,  121  Cal.  482,  53  Pac. 

107o;  Kiernan  v.  Swan,  131  Cal.  410,  63  Pac. 

768;  Reid  v.  Groezinger,  115  Cal.  551,  47  Pac. 

374. 

341         221     Denman  v.  Broderick,  111  Cal.  96,  43  Pac.  516. 

348         223     Conlin  v.  Board  of  Supervisors,  114  Cal.  404,  33 

L.  R.  A.  752,  46  Pac.  279. 
409  12     Miner  v.  Justice's  Court,  121  Cal.  264,  53  Pac. 

795. 
1897  54  60     Popper  v.  Broderick,  123  Cal.  456,  56  Pac.  53. 

Popper  V.  Broderick,  123  Cal.  456,  56  Pac.  53. 
City  of  Los  Angeles  v.  Hance,  122  Cal.  77,  54 
Pac.  387. 
77  83     Estate  of  Stanford,  126  Cal.  112,  54  Pac.  259,  45 

L.  R.  A.  788,  58  Pac.  462;  Estate  of  Mahoney, 
133  Cal.  180,  85  Am.  St.  Rep.  155,  65  Pac.  389. 
Overruled  in  Estate  of  Johnson,  139  Cal.  532, 

96  Am.  St.  Rep.  161,  73  Pac.  424. 
115         106     Spier  v.  Baker,  120  Cal.  370,  41  L.  R.  A.  196,  52 

Pac.  659. 
Pereira  v.  Wallace,  129  Cal.  397,  62  Pac.  61. 
Popper  v.  Broderick,  123  Cal.  456,  56  Pac.  53. 
Johnson   v.   Goodyear   Min.   Co.,   127   Cal.   4,  78 

Am.  St.  Rep.  17,  47  L.  R.  A.  338,  59  Pac.  304. 
304         225     Sixth  Dist.  Agr.  Assn.  v.  Wright,  154  Cal.  119, 

97  Pac,  144. 

311         227     Matter   of   Lambert,   134   Cal.   626,   86   Am.   St. 

Rep.  296,  55  L.  R.  A.  856,  66  Pac.  851. 
452         277     Lougher  v.  Soto,  129  Cal.  610,  62  Pac.  184;  Van 

Harlingen  v.  Doyle,  134  Cal.  53,  54  L.  R.  A, 

771,  66  Pac.  44;  Ex  parte  Anderson,  134  Cal. 

69,  86  Am.  St.  Rep.  236,  66  Pac.  194;  Pratt  v. 

Browne,  135  Cal.  649,  67  Pac.  1082;  Ex  parte 

Young,  154  Cal.  317,  22  L.  R.  A.  (N.  S.)  330, 

97  Pac.  822. 
1899  24  24     People  v.  Curry,  130  Cal.  82,  62  Pac.  516. 

47  46     Britton  v.  Board  of  Election  Commrs.,  129  Cal. 

337,  ol  L.  R.  A.  115,  61  Pac.  1115. 
1901  56  51     Hewitt  v.  State  Board,   148   Cal.  590,  113  Am. 

St.  Rep.  315,  7  Ann.  Cas.  750,  3  L.  R.  A.  (N. 

S.)  896,  84  Pac.  39. 
117    102  Lewis  v.  Dunne,  134  Cal.  291,  86  Am.  St.  Rep. 

257,  55  L.  R.  A.  833,  66  Pac.  478. 
332    157  Lewis  v.  Dunne,  134  Cal.  291,  86  Am.  St.  Rep. 

257,  55  L.  R.  A.  833,  66  Pac.  478. 
433    158  Lewis  v.  Dunne,  134  Cal.  291,  86  Am.  St.  Rep. 

257,  55  L.  E.  A.  833,  66  Pac.  478. 
685    233  Tucker  v.  Barnum,  144  Cal.  266,  77  Pac.  919. 
1903      14     11  Ex  parte  Dickey,  144  Cal.  234,  103  Am.  St.  Rep. 

82,  1  Ann.  Cas.  428,  66  L.  R.  A.  928,  77  Pac. 

924. 


622  UNCONSTITUTIONAL   STATUTES. 

Statutes   Page    Chapter  Case 

1905  67  69     Ex  parte  Drexel,  147  Cal.  763,  3  Ann.  Cas.  878, 

2  L.  R.  A.  (N.  S.)  588,  82  Pac.  429. 
140         140     Ex  parte  Quarg,  149  Cal.  79,  117  Am.  St.  Rep. 
115,  9  Ann.  Cas.  747,  o  L.  R.  A.  (N.  S.)  183, 
84  Pac.  766. 
224         249     Harrison  v.  Colgan,  148  Cal.  69,  82  Pac.  674. 
316         302     Ex   parte    Dietrech,    149    Cal.    104,   5   L,   R.   A. 

(N.  S.)   873,  84  Pac.  770. 

338         313     Ex   parte   Hayden,    147   Cal.   649,   109   Am.   St. 

Rep.  183,  1  L.  R.  A.  (N.  S.)  184,  82  Pac.  315. 

422    354  Ex  parte  Sohncke,  148  Cal.  262,  113  Am.  St. 

Rep.  236,  7  Ann.  Cas.  475,  2  L.  R.  A.  (N.  S.) 

813,  82  Pac.  956. 

493         386     H.  K.  Mulford  Co.  v.  Curry,  163  Cal.  276,  125 

Pac.  236. 
711  55     Ex   parte   Sohncke,   148   Cal.   262,   113   Am.   St. 

Rep.  236,  7  Ann.  Cas.  475,  2  L.  R.  A.  (N.  S.) 
813,  82  Pac.  956. 
1907  344  Boca  Mill  Co.  v.   Curry,   154   Cal.  326,   97  Pac. 

1117. 
1911  40  23     Brookes  v.   City  of  Oakland,  160   Cal.  423,  117 

Pac.  433. 
In  re  Crane,  26  Cal.  App.  22,  145  Pac.  733. 
1913  204         107     McClure  v.  Nye,  22  Cal.  App.  248, 133  Pac.  1145. 

McClure  v.  Nye,  22  Cal.  App.  248,  133  Pac.  1145. 
McClure  v.  Nye,  22  Cal.  App.  248,  133  Pac.  1145. 
McClure  v.  Nye,  22  Cal.  App.  248,  133  Pac.  1145. 
McClure  v.  Nye,  22  Cal.  App.  248,  133  Pac.  1145. 
McClure  v.  Nye,  22  Cal.  App.  248,  133  Pac.  114d. 
Matter  of  Application  of  Mascolo,  25  Cal.  App. 
92,  142  Pac.  903. 


1268 

663 

204 

107 

276 

171 

277 

172 

277 

173 

135 

102 

278 

174 

988 

575 

TABLE  OF  PARALLEL  SECTIONS  IN  CONSTITUTIONS 
OF  1849  AND  1879. 


Constitution 

Constitution   i 

Constitution 

Constitutio 

n 

1879 

1849 

1879 

1849 

Art. 

Sec. 

Art. 

Sec. 

Art. 

Sec. 

Art. 

Sec. 

I 

1 

I 

1 

IV 

11 

IV 

12 

2 

2 

12 

13 

3 

13 

14 

4 

4 

14 

15 

5 

5 

15 

16 

6 

6 

16 

17 

6 

7 

17 

18 

7 

3 

18 

19 

8 

19 

20 

9 

9 

20 

21 

10 

10 

21 

22 

11 

11 

22 

23 

12 

12 

23 

24 

12 

13 

24 

25 

13 

8 

24 

XI 

21 

14 

25 

IV 

26 

15 

15 

26 

27 

16 

16 

27 

30 

17 

17 

28 

38 

18 

18 

29 

19 

19 

30 

20 

20 

31 

XI 

10 

21 

32 

22 

33 

23 

21 

34 

I 

22 

24 

35 

n 

1 

n 

1 

V 

1 

V 

1 

1 

5 

2 

2 

2 

2 

3 

3 

3 

3 

4 

4 

4 

4 

5 

5 

5 

6 

6 

6 

111 

1 

in 

1 

7 

7 

IV 

1 

IV 

1 

8 

8 

2 

2 

9 

9 

3 

3 

10 

10 

4 

4 

11 

11 

4 

5 

12 

12 

5 

6 

7 

13 

14 

14 

l.j 

6 

I 

14 

15 

16 

6 

IV 

28 

16 

17 

6 

29 

17 

18 

6 

Schedule 

14 

18 

19 

7 

IV 

8 

20 

8 

9 

19 

21 

9 

10 

19 

Schedule 

15 

10 

11 

20 

(623) 


624 


PARALLEL   SECTIONS. 


Constitutio 

n 

Constitution 

Constitution        Constitution 

1879 

1849 

1879 

1849 

Art. 

Sec. 

Art. 

Sec. 

Art. 

Sec.         Art.           Sec. 

VI 

1 

VI 

1 

XI 

8 

2 

2 

81/2 

3 

3 

9 

4 

4 

10 

5 

6 

11 

5 

8 
5 

12 
13 

6 

7 

14 

7 

15 

8 

16 

9 

17 

10 

18           IV            37 

11 

9 

19 

12 

12 

XEI 

1  IV             31 

2  32 

13 

10 

3                            36 

14 

11 

4                            33 

15 

13 

5                            34 

16 

14 

5                            35 

17 

15 

6 

18 

16 

7 

19 

17 

8 

20 

18 

9 

21 

10 

22 

11 

23 

12 

24 

13 

VII 

1 

VII 

1 

14 

vin 

1 

VIII 

1 

15 

1 

2 

16 

1 

3 

17 

2 

18 

IX 

1 

IX 

2 

19 

2 

1 

20 

3 

21 

4 

22 

5 

3 

23 

6 

24 

7 

XIII 

1           XL            13 

6 

2 

9 

4 

3 

X 

1 
2 
3 
4 
5 
0 

4 
5 
6 

7 
8 
9 

XI 

1 
2 
3 

10 
11 
12 

4 

XI 

4 

13 

5 

5 

XIV 

1 

5 

9 

2 

e 

XV 

1 

7 

2 

PARALLEL    SECTIONS. 


625 


Constituti 

on 

Constitution 

Constitution 

Constitution 

1879 

1849 

1879 

1849 

Art. 

Sec. 

Art. 

Sec. 

Art. 

Sec. 

Art. 

Sec. 

XV 

3 

14 

XI 

XVI 

1 

VIII 

1 

XX 

15 

1 

Schedule 

16 

16 

7 

XVII 

1 
2 
3 

XI 

15 

17 
18 
19 

xvni 

1 

X 

1 

20 

Schedule 

13 

2 

2 

XXI 

1 

XII 

1 

XIX 

1 
2 

XXII 

1 

2 

Schedule 

3 

1 

3 

3 

VI 

19 

4 

3 

Schedule 

2 

XX 

1 

XI 

1 

4 

6 

2 

2 

5 

6 

3 

3 

6 

6 

4 

6 

7 

5 

5 

8 

8 

6 

11 

9 

7 

7 

12 

8 

8 

14 

9 

9 

16 

10 

10 

17 

11 

11 

18 

12 

12 

19 

10 

IV 

39 

12 

Schedule 

4 

11 

13 

XI 

20 

12 

Constitution — 40 

TABLE   OF   CALIFORNIA  CITATIONS  TO 
CONSTITUTION  OF  1849. 

[Citations  are  to  California  Reports,   Vols.   1   to    169,    and  California   Appellate 
Eeports,   Vols.  1  to  26.] 


Art.  I 

Sec.  1. 

Art.  I 

Sec.  8 

Art.  I 

Sec.  17 

Art.  Ill 

Seel 

Vol. 
7  Cal. 
9  Cal. 
18  Cal. 

22  Cal. 

23  Cal. 
32  Cal. 

Pag* 

6 

504 
680 
324 
464 
249 

(Con.) 
Vol.       Page 

(Con.) 
Vol.        Page 

(Con.) 
Vol.       Page 

40  Cal. 

513 

30  Cal. 

189 

46  Cal. 

514 

41  Cal. 

168 

36  Cal. 

671 

47  Cal. 

653 

42  Cal. 

43  Cal. 
48  Cal. 
50  Cal. 

168 

79 

334 

403 

65  Cal. 
Art.  I 

595 
Sec.  21. 

50  Cal. 
151  Cal. 

403 
285 

33  Cal. 
36  Cal. 
38  Cal. 

281 
671 
703 

51  Cal. 
53  Cal. 
53  Cal. 

248 
45 

212 

32  Cal. 

249 

Art.rV 

5  Cal. 
46  Cal. 

Sec.  1. 

21 

514 

53  Cal. 

412 

Art.n 

Seel. 

47  Cal. 

652 

Art.  I 

Sec.  2. 

59  Cal. 
66  Cal. 

245 
500 

5  Cal. 

25 

166  Cal. 

605 

22  Cal. 

324 

69  Cal. 

372 

26  Cal. 

178 

30  Cal. 

189 

109  Cal. 

449 

Art.  IV 

Sec.  3 

69  Cal. 

372 

109  Cal. 
130  Cal. 

622 
495 

Art.n 

Sec.  2. 

26  Cal. 

254 

167  Cal. 

318 

26  Cal. 

209 

Art.  I 

Sec.  3. 

Art.  IV 

Sec.  5 

16  Cal. 

253 

26  Cal. 

253 

22  Cal. 

316 

Art.  I 

Sec.  9. 

Art.  ir 

Sec.  3. 

22  Cal. 

316 

26  Cal. 

249 

Art.  IV 

Sec.  7 

Art.  I 

Sec.  4. 

8  Cal. 

415 

9  Cal. 

504 

Art.  I 

Sec.  11. 

Art.  ir 

Sec.  4. 

17  Cal. 

612 

17  Cal. 

552 

26  Cal. 

211 

Art.  IV 

18  Cal. 

680 

24  Cal. 

544 

28  Cal. 

140 

Sec.  8 

26  Cal. 

255 

38  Cal. 

93 

34  Cal. 

535 

36  Cal. 

671 

Art.  I 
11  Cal. 

Sec.  5. 
226 

37  Cal. 

38  Cal. 

375 

703 

Art.n 

See.  6. 

Art.  IV 

Sec.  10 

43  Cal. 

432 

26  Cal. 

186 

34  Cal. 

535 

52  Cal. 

601 

Art.  I 

Sec.  7. 

58  Cal. 

61 

Art.  TV 

Sec.  17 

19  Cal. 

541 

Art.  Ill 

Sec.  1. 

6  Cal. 

66® 

41  Cal. 

31 

Art.  I 

Sec.  15. 

5  Cal. 

19 

9  Cal. 

522 

ICal. 

440 

5  Cal. 

112 

39  Cal. 

541 

6  Cal. 

240 

8  Cal. 

15 

Art.  I 

Sec.  8. 

53  Cal. 

207 

10  Cal. 

403 

Art.  IV 

Sec.  18 

12  Cal. 
18  Cal. 

83 
251 

Art.  I 

Sec.  16. 

17  Cal. 
20  Cal. 

557 
43 

34  Cal. 

535 

22  Cal. 

23  Cal. 

316 
326 

22  Cal. 

316 

22  Cal. 
24  Cal. 

478 
126 

Art.  IV 

Sec.  19 

29  Cal. 

256 

Art.  I 

Sec.  17 

29  Cal. 

452 

2  Cal. 

211 

32  Cal. 

33  Cal. 

250 

6  Cal. 

253 

30  Cal. 
33  Cal. 

167 
281 

22  Cal. 
45  Cal. 

314 

218 

281 

13  Cal. 

165 

34  Cal. 

525 

118  Cal. 

483 

(627) 


628 


CITATIONS   TO    CONSTITUTION   OF    1849. 


Art.  IV    Sec.  20 


Vol. 
22  Cal. 


Page 

314 


Art.  IV  Sec.  21 

10  Cal.  43 

22  Cal.  314 

52  Cal.  39 


Art.  IV  Sec.  23 

36  Cal.    621 

106  Cal.    116 


Art.  IV 
9  Cal. 


Sec.  24 
347 


Art.  IV 

2  Cal. 

6  Cal. 

9  Cal. 

10  Cal. 

36  Cal. 

144  Cal. 

16  "  App 


Sec.  25 
299 


383 
522 
316 
622 
387 
344 


Art.  IV 
5  Cal. 

22  Cal. 

37  Cal. 

37  Cal. 

48  Cal. 

52  Cal. 

54  Cal. 

77  Cal. 

98  Cal. 
109  Cal. 
Ill  Cal. 
119  Cal. 
160  Cal. 


Art.  IV 
24  Cal. 
35  Cal. 
62  Cal. 

Ill  Cal. 


Sec.  31 

46 
423 
379 
540 
509 
143 

95 
371 

53 
580 

66 
341 
121 


Sec.  32 

538 

166 

461 

62 


Art.  IV    Sec.  35 


Vol. 
105  Cal. 


Art.  IV 
24  Cal. 
35  Cal. 
62  Cal. 

Ill  Cal. 

160  Cal. 


Art.  IV 
31  Cal. 
34  Cal. 

47  Cal. 

48  Cal. 
51  Cal. 


Art.  V 
5  Cal. 


Page 

378 


Sec.  36 
538 
166 
461 
62 
581 


Sec.  37 
252 
523 
657 
318 
24 


Seel 
21 


Art.  V  Sec.  2 

10  Cal.  44 

26  Cal.  253 

62  Cal.  569 


Art.V 
34  Cal. 


Sec.  4 
536 


Art.V 

Sec.  8 

ICal. 

535 

2  Cal. 

203 

3  Cal. 

505 

6  Cal. 

290 

7  Cal. 

523 

8  Cal. 

12 

20  Cal. 

507 

22  Cal. 

314 

34  Cal. 

541 

37  Cal. 

641 

Art.rV   See.  34 

52  Cal.         198 

105  Cal.         377 


Art.V 

34  Cal. 

Art.V 
22  Cal. 


Sec.  11 
536 

Sec.  12 
314 


Art.V 
Vol. 

34  Cal. 

43  Cal. 

Art.V 
2  Cal. 
10  Cal. 
26  Cal. 
34  Cal. 
62  Cal. 


Sec.  13 

Page 

536 

441 


Sec.  16 
223 
44 
253 
536 
569 


Art.V     Sec.  17 
10  Cal.  44 

62  Cal.         569 


Art.  V  Sec.  18 

15  Cal.  62 

Art.  V  Sec.  20 

15  Cal.  62 

26  Cal.  253 

Art.  V  Sec.  21 

9  Cal.  347 

47  Cal.  366 

Art.  VI  Seel 


ICal. 
ICal. 
5  Cal. 

11  CaJ. 

12  Cal. 

21  Cal. 

22  Cal. 
34  Cal. 
34  Cal. 
39  Cal. 
41  Cal. 
48  Cal. 
52  Cal. 

Art.  VI 
2  Cal. 
5  Cal. 


Art.  VI 

2  Cal. 

8  Cal. 

10  Cal. 


145 

380 

20 

85 

387 

417 

478 

523 

532 

517 

131 

74 

223 

Sec.  2 
202 
104 


Sec.  3 

202 

16 

46 


Art.  VI      Sec.  4 


Vol. 

ICal. 

1  Cal. 

ICal. 

3  Cal. 

3  Cal. 

9  Cal. 
10  Cal. 
10  Cal. 
13  Cal. 
25  Cal. 
25  Cal. 
27  Cal. 

30  Cal. 

31  Cal. 
34  Cal. 
40  Cal. 
42  Cal. 
49  Cal. 
53  Cal. 
55  Cal. 
60  Cal. 

157  Cal. 


Art.  VI 
1  Cal. 
3  Cal. 

11  Cal. 

12  Cal. 
29  Cal. 


Page 

87 

91 

145 

248 

389 

89 

46 

253 

30 

28 

95 

107 

101 

144 

33 

482 

56 

140 

291 

191 

654 

4 


Sec.  5 
381 

504 

85 

387 

485 


Art.  VI 

Sec.  6 

3  Cal. 

389 

4  Cal. 

342 

5  Cal. 

95 

5  Cal. 

230 

9  Cal. 

87 

10  Cal. 

253 

24  Cal. 

65 

26  Cal. 

383 

28  Cal. 

121 

30  Cal. 

575 

31  Cal. 

144 

31  Cal. 

339 

34  Cal. 

688 

36  Cal. 

28 

42  Cal. 

56 

51  Cal. 

501 

52  Cal. 

491 

54  Cal. 

288 

58  Cal. 

400 

64  Cal. 

288 

79  Cal. 

484 

157  Cal. 

788 

CITATIONS  TO  CONSTITUTION  OF  1849. 


629 


I 


Art.  VI  See.  7 

Vol.  Page 

16  Cal.  442 

30  Cal.  683 

40  Cal.  654 


Art.  VI   Sec.  8 


5  Cal. 

5  Cal. 

6  Cal. 
9  Cal. 

10  Cal. 
20  CaJ. 
28  Cal. 
30  Cal. 
34  Cal. 

36  Cal. 

37  Cal. 

38  Cal. 

39  Cal. 

41  Cal. 

42  Cal. 

44  Cal. 

45  Cal. 
45  Cal. 
48  Cal. 

51  Cal. 

52  Cal. 

53  Cal. 
58  Cal. 

4  "  App. 


22 
104 

89 

87 
403 

44 
119 
575 
689 

27 
161 
157 

99 
131 

56 
125 
217 
679 

72 
433 
223 
413 
402 
119 


Art.  VI  Sec.  9 

3  Cal.  389 

5  Cal.  279 

6  Cal.  66 
9  Cal.  88 

15  Cal.  92 

19  Cal.  572 

24  Cal.  66 

24  Cal.  452 

28  Cal.  119 

42  Cal.  67 
53  Cal.  413 

157  Cal.  776 

Art.  VI  Sec.  10 

8  Cal.  382 

Art.  VI  Sec.  11 

32  Cal.  299 

43  Cal.  435 

Art.  VI  Sec.  14 

5  Cal.  232 

9  Cal.  87 


Art.  VI  Sec.  15 

Vol.  Page 

2  Cal.  203 

9  Cal.  346 

12  Cal.  392 


Art.  VI  Sec.  16 

12  Cal.  392 

30  Cal.  163 

38  Cal.  395 

Art.  VI  Sec.  17 

27  Cal.  513 

55  Cal.  238 

Art.  VI  Sec.  18 

59  Cal.  191 


Art.  VI 
21  Cal. 


Sec.  19' 
416 


Art.  Vin  Sec.  1 

6  Cal.  500 

7  Cal.  66 
13  Cal.  182 

15  Cal.  454 

16  Cal.  253 
23  Cal.  174 
27  Cal.  20« 

112  Cal.  167 

Art.  IX  Sec.  2 

37  Cal.  244 

Art.  IX  Sec.  3 

48  Cal.  50 

Art.  IX  Sec.  4 

123  Cal.  616 


Art.  IX 
5  Cal. 

Art.X 
26  Cal. 

Art.X 
55  Cal. 


Sec.  5 
22 

Sec.  2 
186 

Sec.  7 
524 


Art.  XI  Sec.  1 

Vol.  Page 

5  Cal.  32 

50  Cal.  572 


Art.  XI  Sec.  3 

17  Cal.  20 

22  Cal.  307 

24  Cal.  243 


Art.  XI  Sec.  4 

33  Cal.  494 

34  Cal.  532 

47  Cal.  656 

48  Cal.  318 
50  Cal.  564 
58  Cal.  61 

121  Cal.  551 


Art.  XI  Sec.  5 

33  Cal.  404 

39  Cal.  9 

47  Cal.  656 


Art.  XI 
8  Cal. 
22  Cal. 
34  Cal. 
45  Cal. 


Sec.  6 

16 

314 

541 

558 


Art.  XI  Sec.  13 


Art.  XI  Sec.  7 

6  Cal.  289 

7  Cal.  102 
22  Cal.  314 
79  Cal.  113 

128  Cal.  604 
1  "  App.   7 


Art.  XI 
23  Cal. 


Sec.  8 
182 


Art.  XI  Sec.  9 

34  Cal.  533 

47  Cal.  657 

51  Cal.  29 

Art.  XI  Sec.  10 
27  Cal.    207 


Vol. 
ICal. 
2  Cal. 
4  Cal. 

12  Cal. 

13  Cal. 

14  Cal. 
22  Cal. 

29  Cal. 

30  Cal. 
34  Cal. 
34  Cal. 
37  Cal. 

40  Cal. 

41  Cal. 
43  Cal. 

43  Cal. 

44  Cal. 
46  Cal. 

46  Cal. 

47  Cal. 
47  Cal. 
51  Cal. 

51  Cal. 

52  Cal. 
52  Cal. 
58  Cal. 


Page 
252 
592 

49 

83 
350 

16 
369 
451 
683 
475 
657 
246 
513 
354 
335 
434 
326 
506 
556 

92 
648 
244 
501 

81 
601 

61 


Art.  XI  Sec.  14 

153  3G2 

Art.  XI  Sec.  15 

14  Cal.  474 

24  Cal.  640 

Art.  XI  Sec.  16 

58  Cal.  472 

Art.  XI  Sec.  18 

2  Cal.  211 

22  Cal.  316 

Art.  XI  Sec.  19 

26  Cal.  211 


Art.  Xn 
27  Cal. 


Sec.  4 
211 


Art.  XII  Sec.  31 
61  Cal.     5 


TABLE  OF  CALIFORNIA  CITATIONS  TO 
CONSTITUTION  OF  1879. 

[Citations  are  to  California  Eeports,  Vols.  1  to   169,  and  California  Appellate 
Reports,  Vols.  1  to  26.] 


Art.  I   Seel 


Vol. 

Page 

65  Cal. 

35 

112  Cal. 

471 

128  Cal. 

434 

133  Cal. 

354 

133  Cal. 

377 

136  Cal. 

125 

147  Cal. 

650 

147  Cal. 

763 

148  Cal. 

127 

149  Cal. 

400 

154  Cal. 

322 

157  Cal. 

774 

158  Cal. 

325 

162  Cal. 

691 

5  "  App. 

759 

6  "  App. 

236 

Art.  I 

Sec.  2 

92  Cal. 

316 

160  Cal. 

302 

Art.  I  Sec.  3 
105  Cal.    606 
144  Cal.     79 

Art.  I  Sec.  4 

59  Cal.     13 

60  Cal.    201 
79  Cal.    176 

Art.  I  Sec.  6 


103 

257 
737 
383 


54  Cal. 

67  Cal. 

156  Cal. 

160  Cal. 

1  "  App.  199 

8  "  App.  469 

8  "  App.  566 

11  "  App.  575 

18  "  App.   4 


Art.  I 
64  Cal. 
87  Cal. 


Sec.  7 
266 
354 


Art.  I  Sec.  7 

(Con.) 

Vol.       Page 

122  Cal.    139 

139  Cal.    589 

164  Cal.    177 

169  Cal.    167 

169  Cal.    169 

169  Cal.    556 

5  "  App.  623 

S  "  App.  233 

9  "  App.  250 

Art.  I  Sec.  8 


56  Cal. 

233 

59  Cal. 

245 

60  Cal. 

104 

65  Cal. 

646 

108  Cal. 

663 

Ill  Cal. 

612 

115  Cal. 

53 

152  Cal. 

73 

167  Cal. 

317 

5  "  App. 
5  "  App. 
8  "  App. 

8  "  App. 

9  "  App. 
9  "  App. 

19  "  App. 

20  "  App. 
24  «  App. 

465 
468 
219 
755 
283 
543 
551 
589 
181 

Art.  I  Sec.  9 

72  Cal. 

466 

73  Cal. 

123 

112  Cal. 

97 

139  Cal. 

121 

167  Cal. 

317 

25  "  App. 

782 

Art.  I  Sec 

.10 

129  Cal. 

343 

Art.  I  Sec.  11 

59  Cal.     12 

60  Cal.    189 


Art.  T 
(C 
Vol. 
65  Cal 

68  Cal 

69  Cal 
71  Cal 
73  Cal 
76  Cal, 
84  Cal. 

89  Cal, 

90  Cal, 

91  Cal 
94  Cal 

104  Cal 
109  Cal, 
109  Cal, 
111  Cal 
111  Cal, 

113  Cal, 

114  Cal 

118  Cal. 

119  Cal. 
122  Cal, 

126  Cal, 

127  Cal 
129  Cal, 
134  Cal, 

136  Cal, 

137  Cal 

138  Cal. 
140  Cal 

143  Cal, 

144  Cal, 

147  Cal, 

148  Cal, 

148  Cal. 

149  Cal. 
151  Cal. 
153  Cal. 
155  Cal, 
155  Cal. 
157  Cal. 
157  Cal. 
157  Cal, 
157  Cal. 
162  Cal, 
162  Cal. 
164  Cal. 


Sec.  11 
on.) 

Page 

35 
145 
151 
631 
582 
442 

76 
523 
558 
249 
603 
351 
334 
497 
371 
569 
646 
146 
305 
241 
147 

37 

7 

343 

55 
528 
481 
381 
487 
414 
269 
334 
265 
748 
400 
334 

61 
381 
657 

55 

75 
158 
163 
590 
691 
326 


Art.  I  Sec.  11 

(Con.) 
Vol.       Page 
164  Cal.    400 
164  Cal.    568 


1 
6 
11 
12 
17 
18 
24 
24 
25 


App.  199 
App.  240 
App.  407 
App.  405 
App.  425 
App.  33 
App.  89 
App.  218 
App.  95 


Art.  T  Sec.  12 
5  "  App.  649 

Art.  I  Sec.  13 


65  Cal. 

66  Cal. 

68  Cal. 

69  Cal. 

70  Cal. 
70  Cal. 
82  Cal. 

100  Cal. 

103  Cal. 

104  Cal. 
107  Cal. 

115  Cal. 

116  Cal. 
127  Cal. 
130  Cal. 
133  Cal. 
136  Cal. 

144  Cal. 

145  Cal. 

146  Cal. 
150  Cal. 

150  Cal. 

151  Cal. 

152  Cal. 
154  Cal. 
154  Cal. 
154  Cal. 
160  Cal. 


223 
102 
630 
372 

18 
177 
459 
153 
354 
527 
288 

61 
250 
7 
123 
351 
125 

56 

90 
315 

34 
550 
204 
617 
308 
322 
390 
338 


(631) 


632 


CITATIONS   TO    CONSTITUTION   OF    1879. 


Art.  I  Sec.  13 

(Con.) 
Vol.       Page 
160  Cal.    427 
165  Cal.     61 
168  Cal.    781 

1  "  App.  199 

2  "  App.  204 
App.  214 
App.  590 
App.  750 
App.  236 
App.  753 
App.  117 
App.  200 
App.  250 
App.  472 
App.  545 
App.  114 
App.  6 
App.  65 
App.  800 


5 

5 

5 

6 

7 

8 

9 

9 

11 

13 

14 

17 

18 

24 


26  "  App.  337 


Art.  I  Sec.  14 


59  Cal. 
66  Cal. 
68  Cal. 
74  Cal. 
79  Cal. 
91  Cal. 
94  Cal. 

94  Cal. 

95  Cal. 
98  Cal. 
98  Cal. 

103  Cal. 
106  Cal. 
109  Cal. 
Ill  Cal. 
118  Cal. 
118  Cal. 
126  Cal. 
130  Cal. 
130  Cal. 
133  Cal. 
137  Cal. 
137  Cal. 
144  Cal. 
151  Cal. 

154  Cal. 

155  Cal. 
157  Cal. 
160  Cal. 
162  Cal. 
166  Cal. 
166  Cal. 


265 
501 

65 
262 
551 
456 
492 
608 
223 
262 
617 
616 
284 
622 
563 
287 
572 
153 
495 
634 
105 
579 
621 
212 
273 
322 
320 

75 
299 
717 
658 
688 


Art.  I  Sec.  14 

(Con.) 
Vol.  Page 
169  Cal.  555 
169  Cal.  557 
1  "  App.  444 
App.  560 
App.  730 
App.  381 
App.  134 
App.  273 
App.  266 


2 
5 
10 
19 
23 
24 


Art.  I  Sec.  15 

134  Cal.    661 

26  "  App.  25 

Art.  I  Sec.  16 

72  Cal.  466 

116  Cal.  523 

146  Cal.  624 

162  Cal.  233 

166  Cal.  638 


Art.  I  Sec.  17 
65  Cal.  594 
67  Cal.  382 
70  Cal.    155 

158  Cal.    325 


Art.  I  Sec.  19 

68  Cal.    288 

105  Cal.    606 

155  Cal.    546 

15  "  App.  285 

App. 


23 


665 


Art.  I  Sec.  20 
144  Cal.    173 


Art.  I  Sec.  21 

60  Cal.  189 

65  Cal.  35 

69  Cal.  151 

73  Cal.  371 

112  Cal.  471 

118  Cal.  5 

129  Cal.  343 

134  Cal.  55 

137  Cal.  181 


Art.  I  Sec.  21 

(Con.) 
Vol.       Page 
143  Cal.    414 
143  Cal.    573 

148  Cal.    265 

149  Cal.    400 

151  Cal.    334 

152  Cal.  233 
154  Cal.    330 

156  Cal.     74 

157  Cal.  55 
162  Cal.  590 
162  Cal.  691 
164  Cal.    568 

6  "  App.  237 

8  "  App.  535 

12  "  App.  405 

18  "  App.  25 

24  "  App.  89 

25  "  App.  539 


Art.  I  Sec.  22 

54  Cal.  247 

57  Cal.  609 

69  Cal.  485 

83  Cal.  403 

83  Cal.  494 

86  Cal.  50 

92  Cal.  316 

115  Cal.  548 

128  Cal.  247 

129  Cal.  403 
132  Cal.  219 
144  Cal.  387 
147  Cal.  582 
160  Cal.  40 
164  Cal.  710 
166  Cal.  587 

9  "  App.  159 


Art.  I  Sec.  23 
129  Cal.    347 


Art.  I  See.  24 
117  Cal.  123 
155  Cal.  389 
155  Cal.  789 
160  Cal.    355 


Art.  I     Sec.  25 
24  "  App.  340 


Art.  II   S 

ec.  1 

Vol. 

Page 

92  Cal. 

321 

117  Cal. 

123 

120  Cal. 

374 

127  Cal. 

88 

136  Cal. 

451 

145  Cal. 

341 

146  Cal. 

513 

151  Cal. 

603 

152  Cal. 

231 

165  Cal. 

778 

7  "  App. 

413 

23  "  App. 

471 

Art.n  Sec.  21/2 
146  Cal.         316 

151  Cal.    602 

152  Cal.  434 
155  Cal.  780 
168  Cal.    322 

Art.  II  Sec.  4 

105  Cal.    462 
7  "  App.  553 

Art.n  Sec.  5 
146  Cal.    316 

154  Cal.  282 
20  "  App.  20 

Art.  II  Sec.  6 
20  "  App.  19 

Art.  in  Sec.  1 

58  Cal.  643 

61  Cal.  322 

68  Cal.  196 

80  Cal.  234 

102  Cal.  470 

106  Cal.  422 
123  Cal.  527 

126  Cal.  672 

127  Cal.  159 
129  Cal.  604 
140  Cal.  1 
146  Cal.  607 
148  Cal.  631 

150  Cal.  318 

151  Cal.  43 

155  Cal.  656 

156  Cal.  501 

157  Cal.    422 
1  "  App.  67 

11  "  App.  572 


CITATIONS  TO  CONSTITUTION  OF  1879. 


633 


Art.  IV  Sec.  1 


Vol. 

56 

63 

72 

92 

96 

139 

14.5 

151 

152 

164 

167 

167 

168 

9 

22 

22 


Cal. 
Cal. 
Cal. 
Cal. 
Cal. 
Cal. 
Cal. 
Cal. 
Cal. 
Cal. 
Cal. 
Cal. 
Cal. 


Page 
100 

21 
466 
307 
291 

28 
686 
803 
236 
325 
236 
319 
709 


"  App.  159 
"  App.  249 
"  App.  483 


Art.  IV  Sec.  2 

56  Cal.  101 

96  Cal.  291 

114  Cal.  114 

130  Cal.  88 

144  Cal.  173 
146  Cal.  607 

Art.  IV  Sec.  3 

55  Cal.  622 

56  Cal.  100 
96  Cal.  291 

114  Cal.  169 

Art.  IV  Sec.  4 

55  Cal.  622 

56  Cal.  100 
96  Cal.  264 

119  Cal.  438 

154  Cal.  281 

168  Cal.  497 

1€8  Cal.  533 

Art.  IV  Sec.  5 

65  Cal.  578 

66  Cal.  29 
96  Cal.  291 

145  Cal.  425' 

Art.  IV  Sec.  6 

65  Cal.  577 

96  Cal.  290 

152  Cal.  233 

156  Cal.  474 


Art.  IV   Sec.  7 


Vol. 

164  Cal. 


Page 
57 


Art.  IV  Sec.  9 

146  Cal.  606 

Art.  IV  Sec.  10 

80  Cal.  213 

160  Cal.  760 

167  Cal.  319 

Art.  IV  Sec.  15 

54  Cal.  112 

72  Cal.  467 

80  Cal.  213 

85  Cal.  336 

100  Cal.  421 

121  Cal.  267 

145  Cal.  688 

158  Cal.  84 

23  "  App.  581 

Art.  IV  Sec.  16 

72  Cal.  467 
80  Cal.  213 
83  Cal.  494 
85  Cal.  337 

121  Cal.  267 
156  Cal.  501 

160  Cal.  760 

Art.  IV  Sec.  18 

85  Cal.  645 

108  Cal.  662 

122  Cal.  293 
145  Cal.  37 

147  Cal.  533 
154  Cal.  281 

161  Cal.  174 

168  Cal.  535 

Art.  IV  Sec.  20 

61  Cal.  267 

73  Cal.  231 
154  Cal.  281 

2  "  App.  55 

Art.  IV  Sec.  21 

136  Cal.  445 

154  Cal.  28 


Art.  IV  Sec.  22 


Vol. 

61  Cal. 

69  Cal. 

71  Cal, 

77  Cal. 

84  Cal. 

92  Cal. 
106  Cal. 
121  Cal. 
123  Cal. 
126  Cal. 
144  Cal. 
151  Cal. 
154  Cal. 
156  Cal. 
169  Cal. 
169  Cal. 
8  "  App. 

19  "  App. 

25  "  App. 


Page 
267 

77 
630 
134 

58 

55 
116 

19 
151 
118 
684 
800 
129 
504 
137 
139 
531 
570 
538 


Art.  IV  Sec.  23 
15  "  App.  302 


Art.  IV 
55  Cal. 

57  Cal. 

58  Cal. 
60  Cal. 
74  Cal. 
74  Cal. 
80  Cal. 
84  Cal. 
88  Cal. 
93  Cal. 

102  Cal. 
102  Cal. 
114  Cal. 
117  Cal. 
120  Cal. 
122  Cal. 
125  Cal. 

128  Cal. 

129  Cal. 

129  Cal. 

130  Cal. 

132  Cal. 

133  Cal. 

134  Cal. 

135  Cal. 

139  Cal. 

140  Cal. 

141  Cal. 


Sec.  24 
496 
613 
635 

30 

41 
552 
270 
228 
534 
635 

31 
418 
149 

86 
373 

79 
414 
668 
570 
606 

91 
219 

76 
478 
652 
463 
487 
334 


Art.  IV  Sec.  24 

(Con.) 
Vol.       Page 

142  Cal.     13 

143  Cal.    258 

143  Cal.    627 

144  Cal.  387 
146  Cal.    650 

150  Cal.    326 

151  Cal.  50 
154  Cal.    202 

154  Cal.    388 

155  Cal.  113 
155  Cal.  384 
155  Cal.  658 
157  Cal.  58 
157  Cal.  75 
159  Cal.    511 

161  Cal.    348 

162  Cal.  202 
162  Cal.  232 
162  Cal.    691 

164  Cal.    567 

165  Cal.  210 
165  Cal.  344 
165  Cal.  747 
167  Cal.    293 

1  "  App.  64 

2  "  App.  252 

11  "  App.  306 

12  "  App.  29 
18  "  App.  27 

18  "  App.  61 

19  "  App.  602 

20  "  App.  154 
20  "  App.  515 
22  "  App.  27 
22  "  App.  431 

24  "  App.  46 

25  "  App.  95 


Art.  IV 
55  Cal. 
55  Cal. 
57  Cal. 

59  Cal. 

60  Cal. 

61  Cal. 
61  Cal. 
63  Cal. 

72  Cal. 

73  Cal. 
81  Cal. 
84  Cal. 
87  Cal. 
93  Cal. 

105  Cal. 


Sec.  25 

490 

618 

613 

8 

32 

38 
267 
382 
466 

77 
499 
229 

79 
400 
616 


634 


CITATIONS   TO   CONSTITUTION    OF    1879. 


Art.  IV  Sec.  25 

(Con.) 
Vol.       Page 
124  Cal.    696 
135  Cal.    518 

137  Cal.    518 

138  Cal.  381 
140  Cal.    480 

142  Cal.    195 

143  Cal.    414 

149  Cal.    399 

150  Cal.    322 

150  Cal.    566 

151  Cal.    478 

152  Cal.    231 

154  Cal.    330 

155  Cal.    381 

156  Cal.     74 

157  Cal.  55 
160  Cal.  302 
162  Cal.  590 
162  Cal.  691 
164  Cal.  326 
164  Cal.    400 

166  Cal.    768 

167  Cal.    291 

168  Cal.  267 
6  "  App.  240 
8  "  App.  533 

11  "  App.  361 

11  "  App.  407 

12  "  App.  227 
12  "  App.  291 
12  "  App.  292 

17  "  App.  425 

18  "  App.  25 

18  "  App.  449 

19  "  App.  549 

20  "  App.  515 
22  "  App.  442 

24  "  App.  179 

25  "  App.  95 


Sub.  1. 
62  Cal. 

120  Cal. 

121  Cal. 


465 
401 
267 


Sub.  2. 

55  Cal.  551 

60  Cal.  81 

60  Cal.  189 

62  Cal.  465 

67  Cal.  360 

112  Cal.  471 

1  "  App.  149 


Sub.  3 
Vol. 

62  Cal. 

83  Cal. 

93  Cal. 
100  Cal. 
113  Cal. 
117  Cal. 
120  Cal. 

126  Cal. 

127  Cal. 

1  "  App. 

Sub.  4 
62  Cal. 


Page 
465 
402 
424 
120 
512 
363 
304 
230 
7 
573 


465 


Sub.  6 
123  Cal.    527 

Sub.  7 
114  Cal.    146 


Sub.  9 


55  Cal. 

65  Cal. 

84  Cal. 

94  Cal. 

98  Cal. 
109  Cal. 
Ill  Cal. 

113  Cal. 

114  Cal. 
118  Cal. 
148  Cal. 


622 
123 
76 
620 
224 
335 
102 
646 
410 
306 
748 


Sub. 10 

60  Cal.     28 

83  Cal.    402 

105  Cal.    583 

119  Cal.    521 

124  Cal.    698 

Sub. 11 

55  Cal.  622 

81  Cal.  501 

100  Cal.  425 

111  Cal.  102 

111  Cal.  371 

124  Cal.  698 

Sub. 13 
83  Cal.    402 

Sub.  15 
126  Cal.    117 


Sub.  17 
Vol.       Page 

126  Cal.    117 

Sub. 19 
100  Cal.    120 
118  Cal.    306 
124  Cal.    698 

Sub. 20 
55  Cal.    495 
83  Cal.    402 

Sub.  23 
67  Cal.    360 

Sub.  24 
83  Cal.    402 

127  Cal.      7 

Sub.  25. 
161  Cal.    674 

Sub.  27 

55  Cal.    402 

104  Cal.    351 

124  Cal.    698 

148  Cal.    384 

Sub.  28 

62  Cal.  465 

65  Cal.  123 

65  Cal.  291 

85  Cal.  413 

98  Cal.  224 

111  Cal.  102 

113  Cal.  646 

114  Cal.  410 
118  Cal.  305 

124  Cal.    698 

125  Cal.    192 
132  Cal.    221 

25  "  App.  690 


Sub.  29 


62  Cal. 
65  Cal. 
68  Cal. 
85  Cal. 
89  Cal. 
92  Cal. 

103  Cal. 

104  Cal. 
113  Cal. 
115  Cal. 


465 
123 
145 
496 
523 
606 
395 
644 
645 
549 


Sub. 29 

(Con.) 
Vol.     .  Page 
118  Cal.    306 
126  Cal.     37 
144  Cal.    269 

Sub. 33 

81  Cal.  498 

84  Cal.  76 

91  Cal.  249 

94  Cal.  620 

100  Cal.  120 

109  Cal.  497 

111  Cal.  371 

112  Cal.  471 

114  Cal.  410 
118  Cal.    306 

118  Cal.    404 

119  Cal.  523 
124  Cal.    698 

126  Cal.  230 

127  Cal.  7 
127  Cal.  684 
130  Cal.  134 
132  Cal.  221 
144  Cal.  269 
148  Cal.  148 

1  "  App.  573 

Art.  IV  See.  25i 
24  "  App.  341 

24  "  App.  342 

25  "  App.  94 

Art.  IV  Sec.  26 

68  Cal.  289 

87  Cal.  607 

89  Cal.  378 

104  Cal.  599 

127  Cal.  118 

130  Cal.  326 

146  Cal.  658 

150  Cal.  241 

154  Cal.  336 

162  Cal.  457 

12  "  App.  647 

24  "  App.  69 

Art.  IV  Sec.  28 
80  Cal.    213 

Art.  IV  Sec.  29 
61  Cal.    267 

115  Cal.    532 


CITATIONS   TO   CONSTITUTION    OF    1879. 


635 


Art.  IV  Sec.  29 

(Con.) 
Vol.       Pago 
1.51  Cal.    800 
156  Cal.    504 
169  Cal.    137 


Art.  IV  Sec.  30 
115  Cal.  532 
156  Cal.    504 


Art.  IV  Sec.  31 

72  Cal.  473 

74  Cal.  125 

77  Cal.  475 

80  Cal.  270 

83  Cal.  265 

92  Cal.  606 

93  Cal.  326 
97  Cal.  252 
99  Cal.  21 

109  Cal.  380 

112  Cal.  315 

115  Cal.  532 

117  Cal.  176 

118  Cal.  546 
123  Cal.  498 
126  Cal.  118 
138  Cal.  273 

143  Cal.  331 

144  Cal.  692 
149  Cal.  528 

151  Cal.  800 

152  Cal.   735 

153  Cal.  228 

154  Cal.  129 
156  Cal.  475 

156  Cal.  504 

157  Cal.  527 
166  Cal.  605 
168  Cal.  602 

6  "  App.  747 

8  "  App.  535 

15  "  App.  303 

22  "  App.  255 


Art.  IV  See.  32 

72  Cal.  465 

74  Cal.  125 

77  Cal.  475 

80  Cal.  270 

92  Cal.  606 

93  Cal.  326 


Art.  IV  Sec.  32 

(Con.) 
Vol.  Page 
115  Cal.  532 
121  Cal.  21 
123  Cal.  498 
138  Cal.  275 
156  Cal.  504 
15  "  App.  303 


Art.  IV  Sec.  33 
145  Cal.    G33 


Art.  IV  Sec.  34 

94  Cal.  435 

145  Cal.  771 

156  Cal.  504 

169  Cal.  137 

169  Cal.  138 

169  Cal.  139 


Art.  IV  Sec.  35 

86  Cal.    550 

146  Cal.    610 

1  "  App.  55 


Art.  IV  Sec.  36 

167  Cal.    286 

26  "  App.  123 

Art.  IV  Sec.  37 
166  Cal.    605 


Art.  V  Sec.  1 

148  Cal.    504 

1  "  App.  64 


Art.  V  Sec.  2 
56  Cal.  101 
62  Cal.  569 
99  Cal.     45 

114  Cal.  169 
9  "  App.  154 


Art.  V   Sec.  7 
148  Cal.    504 


Art.  V  Sec.  8 

Vol.  Page 

62  Cal.  565 

62  Cal.  56.S 

66  Cal.  655 

93  Cal.  155 

114  Cal.  170 

123  Cal.  309 

127  Cal.  397 

9  "  App.  154 


Art.  V  Sec.  9 
130  Cal.  89 
146  Cal.    607 


Art.  V  Sec.  14 

151  Cal.  240 

156  Cal.  486 

6  "  App.  262 

Art.  V  Sec.  15 

56  Cal.  101 

62  Cal.  569 

114  Cal.  169 


Art.  V.  Sec.  16 

62  CaJ.    569 

9  "  App.  158 

Art.  V   Sec.  17 

56  Cal.    101 

9  "  App.  154 

Art.  V   Sec.  19 
9  "  App.  575 


Art.  VI 

54  Cal. 

62  C:i\. 

66  Cal. 

71  Cal. 

78  Cal. 

82  Cal. 

S3  Cal. 

85  Cal. 

97  Cal. 
114  Cal. 
119  Cal. 


Sec.  1 
186 
465 
4 
633 
557 
344 
112 
335 
216 
330 
232 


Art.  VI   Sec.  1 

(Con.) 
Vol.       Pago 

120  Cal.    401 

121  Cal.  267 
140  Cal.  12 
143  Cal.  246 
151  Cal.  463 
153  Cal.    165 

155  Cal.    386 

156  Cal.    480 

157  Cal.    419 

158  Cal.  448 
161  Cal.  239 
167  Cal.    312 

3  "  App.  645 

6  "  App.  739 

11  "  App.  3G1 

24  "  App.  394 


Art.  VI  Sec.  2 

81  Cal.  460 

82  Cal.  599 
.  83  Cal.  112 

83  Cal.  494 
95  Cal.  43 

148  Cal.  177 
10  "  App.  457 
24  "  App.  394 

Art.  VI  Sec.  3 

56  Cal.  101 

81  Cal.  460 

83  Cal.  112 

99  Cal.  45 

Art.  VI  Sec.  4 


54  Cal. 

55  Cal. 
60  Cal. 
60  Cal. 
62  Cal. 
65  Cal. 
65  Cal. 
65  Cal. 
67  Cal. 
79  Cal. 
79  Cal. 
82  Cal. 

82  Cal. 

83  Cal. 

94  Cal. 

95  Cal. 
100  Cal. 


103 
191 
115 
654 
41 
99 
382 
645 
187 
107 
486 
162 
426 
112 
353 
646 
120 


636 


CITATIONS   TO   CONSTITUTION    OF    1879. 


Art.  VI 

(Con 
Vol. 

108  Cal. 
110  Cal. 
120  Cal. 
122  Cal. 
138  Cal. 
142  Cal. 

146  Cal. 

147  Cal. 

147  Cal. 

148  Cal. 
148  Cal. 

148  Cal. 

149  Cal. 
149  Cal. 
149  Cal. 
149  Cal. 
149  Cal. 
149  Cal. 
149  Cal. 
149  Cal. 
149  Cal. 
151  Cal. 
151  Cal. 

151  Cal. 

152  Cal. 
152  Cal. 

155  Cal. 

156  Cal. 

157  Cal. 
157  Cal. 
159  Cal. 
161  Cal. 
161  Cal. 

163  Cal. 

164  Cal. 

165  Cal. 

165  Cal. 

166  Cal. 
166  Cal. 

166  Cal. 

167  Cal. 
169  Cal. 
169  Cal. 
169  Cal. 
169  Cal. 


Sec.  4 

) 
Page 
663 

39 
569 
534 
429 
628 
138 
265 
347 

70 
742 
773 
292 
296 
309 
324 
351 
456 
428 
482 
712 

30 
203 
518 
110 
603 

66 

84 

4 

773 

33 
241 
310 
242 
731 

63 
206 
370 
647 
693 
793 

51 
170 
579 
619 


2  "  App.  160 

2  "  App.  316 

2  "  App.  533 

2  "  App.  664 

App.  728 

App.  238 

App.  645 

App.  646 

App.  548 


Art.  VI   Sec.  4 
(Con.) 

Page 
App.  678 
App.  114 
App.  3 
App.  221 
App.  257 
App,  567 
App.  658 
App.  434 
App.  490 
App.  755 
App.  210 
App.  218 
App.  567 
App.  27 
App.  298 
App.  385 
App.  122 
App.  391 
App.  736 
App.  624 
App.  368 
App.  89 
App.  114 
App.  722 
App.  605 
App.  807 
App.  408 
App.  555 
App.  568 


Vol 
5 
6 

7 
7 
7 
7 
7 
8 


9 
9 
10 
11 
11 
11 
12 
13 
13 
14 
17 
19 
21 
21 
22 
22 
24 
24 
25 


26  "  App.  17 


Art.  VI  Sec.  4i 


165  Cal. 

165  Cal. 

166  Cal. 
166  Cal. 

168  Cal. 

169  Cal. 
169  Cal. 
169  Cal. 
169  Cal. 

17 
18 
18 


63 
147 
370 
575 
319 
396 
414 
553 
554 


App.  785 
App.  65 
App.  554 
App.  571 
App.  694 
App.  47 
App.  680 
App.  69 
App.  20 
App.  605 
App.  709 
23  "  App.  114 


18 
19 
20 
20 
21 
22 
22 
22 


Art.  VI  Sec.  4i 

(Con.) 
Vol.       Page 


23 
23 
23 
24 
24 
24 
24 
25 
25 
25 
25 
26 
26 
26 


App.  381 
App.  452 
App.  524 
App.  466 
App.  666 
App.  759 
App.  798 
App.  6 
App.  8 
App.  165 
App.  322 
App.  225 
App.  326 
App.  741 


Art.  VI   Sec.  5 


54  Cal. 
60  Cal. 
60  Cal. 

60  Cal. 
€0  Cal. 

61  Cal. 

62  Cal. 

64  Cal. 

65  Cal. 

65  Cal. 

66  Cal. 
71  Cal. 
71  Cal. 
73  Cal. 
76  Cal. 
78  Cal. 
80  Cal. 

82  Cal. 

83  Cal. 

84  Cal. 
87  Cal. 

92  Cal. 

93  Cal. 

94  Cal. 
94  Cal. 

100  Cal. 

103  Cal. 

104  Cal. 
110  Cal. 
117  Cal. 

122  Cal. 

123  Cal. 
130  Cal. 

133  Cal. 

134  Cal. 
138  Cal. 
138  Cal. 


186 
103 
152 
307 
427 

71 

41 
444 
476 
641 
204 
383 
555 
183 
184 
557 

41 
305 
493 
120 
231 

50 
463 
355 
397 
120 
120 
203 
264 
381 
119 
695 

98 

59 
588 

70 
154 


Art.  VI  Sec.  5 

(Con.) 
Vol.       Pago 
140  Cal.    133 
144  Cal.    773 

149  Cal.    793 

150  Cal.  .  468 
150  Cal.    481 

152  Cal.    568 

153  Cal.    598 

154  Cal.  97 
154  Cal.  98 
154  Cal.    464 

154  Cal.    519 

155  Cal.     73 

155  Cal.    386 

156  Cal.  85 
156  Cal.    480 

156  Cal.    491 

157  Cal.  788 
159  Cal.  33 
159  Cal.  364 
159  Cal.  424 
163  Cal.  242 
166  Cal.    647 

166  Cal.    712 

167  Cal.    312 

168  Cal.  498 
168  Cal.    701 

1  "  App.  181 
1  "  App.  227 
4  "  App.  720 
6  "  App.  476 

10  "  App.  457 

11  "  App.  362 

12  "  App.  486 

13  "  App.  274 

15  "  App.  474 

16  "  App.  564 
19  "  App.  82 
24  "  App.  360 
26  "  App.  742 


Art.  VI  Sec.  6 


55  Cal. 

56  Cal. 
86  Cal. 
99  Cal. 

104  Cal. 
133  Cal. 
135  Cal. 

138  Cal. 

139  Cal. 
146  Cal. 


266 
101 

28 

44 
234 
455 
653 

15 
477 

10 


6  "  App.  300 


CITATIONS   TO    CONSTITUTION    OF    1879. 


637 


Art.  IV      Sec.  6    j   Art.  VI   Sec.  14 


(Con.) 
Vol.  Page 

9  "  App.  165 
10  "  App.  211 


Art.  VI 

55  Cal. 

133  Cal. 


See.  7 
266 
455 


Sec.  8 

573 

22 


Art.  VI 
130  Cal. 
168  Cal. 

6  "  App.  771 
20  "  App.  163 

Art.  VI      Sec.  9 

86  Cal.  20 

104  Cal.         234 

118  Cal.         483 

6  "  App.  301 

15  "  App.  428 

Art.  VI    Sec.  11 

55  Cal.  611 

60  Cal.  103 

60  Cal.  152 

60  Cal.  427 

80  Cal.  40 

90  Cal.  502 

114  Cal.  331 

121  Cai.  267 

122  Cal.  119 
122  Cal.  534 
130  Cai.  98 
133  Cal.  76 
143  Cal.  246 
151  Cal.  469 
158  Cal.  448 

161  Cal.    239 

162  Cal.  288 
4  "  App.  720 
6  "  App.  739 

Art.  VI  Sec.  13 

78  Cal.  560 

85  Cal.  336 

97  Cal.  216 

120  Cal.  401 

151  Cal.  469 

167  Cal.  316 

11  "  App.  361 


Vol. 

56  Cal. 

94  Cal. 
103  Cal. 
155  Cal. 


Page 

101 

47 

491 

814 


Art.  VI  Sec.  15 
158  Cal.  448 
161  Cal.    239 

Art.  VI  Sec.  16 
80  Cal.    222 


Art.  VI  Sec.  17 
87  Cal.  396 
138  Cal.  37 
148  Cal.  70 
160  Cal.  177 
9  "  App.  578 

Art.  VI  Sec.  18 
118  Cal.  483 
154  Cal.    281 


Art.  VI  Sec.  19 
55  Cal.  238 
65  Cal.  261 
65  Cal.  431 
65  Cal.  569 
86  Cal.  33 
88  Cal.  270 
88  Cal.    426 

96  Cal.    181 

97  Cal.    453 
115  Cal.     14 

129  Cal.    509 

130  Cal.  8 
133  Cal.  398 
149  Cal.  41 
156  Cal.  727 
160  Cal.  176 
163  Cal.  55 
167  Cal.  550 
169  Cal.    170 

4  "  App.  96 
4  "  App.  218 

10  "  App.  491 

11  '•  App.  467 
11  "  App.  553 
13  "  App.  367 


Art.  VI  Sec.  19 
(Con.) 

Page 
App.  636 
App.  101 
App.  744 
App.  229 
App.  522 
App.  648 
App.  339 


Vol. 
13 
14 
19 
22 
23 
24 
26 


Art.  VI  Sec.  20 
103  Cal.  413 
122  Cal.  288 
1.53  Cal.  167 
160  Cal.  722 
24  "  App.  392 

Art.  VI  Sec.  21 
57  Cal.    138 


Art.  VI  Sec.  22 
80  Cal.    221 

Art.  VI  Sec.  24 

62  Cal.    514 

164  Cal.    732 

7  "  App.  228 

Art.  VI  Sec.  29 
80  Cal.    222 

Art.  VI  Sec.  34 
80  Cal.    222 

Art.  VII  Seel 
12  "  App.  298 

Art.  IX  Sec.  1 

118  Cal.  120 

121  Cal.  22 

124  Cal.  699 

151  Cal.  802 

163  Cal.  352 

Art.  IX   Sec.  2 
87  Cal.    396 


Art.  IX   See.  3 


Vol. 
56  Cal. 
114  Cal. 
114  Cal. 
123  Cal. 


Art.  TX 

70  Cal. 

97  Cal. 
104  Cal. 
143  Cal. 


Art.  IX 
55  Cal. 
55  Cal. 
97  Cal. 

104  Cal. 

117  Cal. 

124  Cal. 

134  Cal. 

141  Cal. 

148  Cal. 

148  Cal. 


Art.  TX 
55  Cal. 
97  Cal. 

104  Cal. 

117  Cal. 

118  Cal. 
124  Cal. 
134  Cal. 
141  Cal. 
148  Cal. 
152  Cal. 


Art.  IX 

55  Cal. 

117  Cal. 

153  Cal. 


Art.  IX 
55  Cal. 
71  Cal. 


Art.  IX 
55  Cal. 
66  Cal. 
69  Cal. 


Page 

102 
335 
561 
308 


Sec.  4 

157 
431 
658 
331 


Sec.  5 
334 
490 
431 
350 
523 
698 
65 
376 
384 
753 


Sec.  6 
334 
431 

63 
523 
119 
698 

65 
375 
388 
517 


Sec.  7 
333 
522 
778 


Sec.  S 
334 
630 


Sec.  9 
334 
508 
216 


638 


CITATIONS  TO  CONSTITUTION  OF  1879. 


Art.  IX   Sec.  9 

(Con.) 

Vol.       Page 

104  Cal.    658 

123  Cal.    619 

23  "  App.  622 

Art.  IX  Sec.  11 
104  Cal.    658 


Art.  IX  Sec.  12 
56  Cal.    101 

Art.  IX  Sec.  18 
5  "  App.  419 


Art.  X 
63  Cal. 


Seel 
490 


Art.  X  Sec.  4 
61  Cal.    264 


Art.  XI  Seel 

56  Cal.  103 

61  Cal.  277 

114  Cal.  320 

114  Cal.  561 

129  Cal.  574 

134  Cal.  70 

8  "  App.  679 


Art.  XI  Sec.  2 
61  Cal.  277 
71  Cal.    313 


Art.  XI  Sec.  3 

61  Cal.  277 

97  Cal.  331 

117  Cal.  196 

134  Cal.  522 

152  Cal.  228 

154  Cal.  330 


Art.  XI  Sec.  4 
56  Cal.  103 
61  Cal.    277 


Art.  XI 

(Con. 
Vol. 

65  Cal. 

73  Cal. 

84  Cal. 

94  Cal. 

98  Cal. 
109  Cal. 
109  Cal. 
114  Cal. 
114  Cal. 
118  Cal. 
118  Cal. 
129  Cal. 
134  Cal. 
154  Cal. 


Art.  XI 
53  Cal. 
56  Cal. 
58  Cal. 
58  Cal. 

60  Cal. 

61  Cal. 
65  Cal. 

65  Cal. 

66  Cal. 
73  Cal. 
76  Cal. 
81  Cal. 
84  Cal. 
88  Cal. 

94  Cal. 

95  Cal. 
95  Cal. 
98  Cal. 
98  Cal. 

100  Cal. 

103  Cal. 

104  Cal. 

105  Cal. 

106  Cal. 
109  Cal. 
109  Cal. 
Ill  Cal. 
Ill  Cal. 
Ill  Cal. 
113  Cal. 

113  Cal. 

114  Cal. 

114  Cal. 

115  Cal. 
118  Cal. 
118  Cal. 
125  Cal. 


See.  4 

) 

Page 

123 

77 

76 

624 

224 

334 

496 

320 

561 

308 

404 

574 

70 

330 


Sec.  5 
748 
103 
90 
569 
514 
277 
123 
288 
4 
77 
95 
500 
75 
531 
603 
332 
473 
22'' 
228 
273 
394 
130 
626 
197 
334 
497 
103 
370 
569 
516 
645 
327 
561 
548 
308 
404 
192 


Art.  XI  Sec.  5 

(Con.) 
Vol.       Page 

128  Cal.    247 

129  Cal.  574 
131  Cal.    550 

134  Cal.     70 

135  Cal.    650 

136  Cal.  376 
136  Cal.  655 
141  Cal.  429 
141  Cal.  726 
144  Cal.  269 
148  Cal.    747 

153  Cal.    168 

154  Cal.  330 
157  Cal.  160 
157  Gal.  421 
162  Cal.  593 
164  Cal.    326 

3  "  App.  182 

3  "  App.  274 

4  "  App.  119 

5  "  App.  467 
5  "  App.  679 

15  "  App.  .580 
18  "  App.  448 


Art.  XI  Sec.  6 


55  Cal. 
58  Cal. 

60  Cal. 

61  Cal. 
61  Cal. 
64  Cal. 
66  Cal. 
69  Cal. 
73  Cal. 
73  Cal. 

73  Cal. 

74  Cal. 
74  Cal. 
76  Cal. 

81  Cal. 

82  Cal. 

85  Cal. 

86  Cal. 

87  Cal. 
87  Cal. 

91  Cal. 

92  Cal. 
94  Cal. 

94  Cal. 

95  Cal. 
99  Cal. 

102  Cal. 


246 
566 

81 
277 
319 
242 
5 
470 

76 
312 
622 

26 
125 
446 
497 
341 
346 

41 

92 
606 
249 
316 

74 
621 
111 
560 
304 


Art.  XT  Sec.  6 

(Con.) 

Vol.  Page 

104  Cal.  275 

104  Cal.  644 

111  Cal.  103 

114  Cal.  147 

114  Cal.  321 

115  Cal.  514 
118  Cal.  403 
123  Cal.  459 
123  Cal.  603 

126  Cal.  386 

127  Cal.  666 
129  Cal.  514 

131  Cal.  33 

132  Cal.  381 

132  Cal.  442 

133  Cal.  104 
135  Cal.  519 
138  Cal.  13] 
138  Cal.  152 

141  Cal.  207 

142  Cal.  515 

143  Cal.  553 

143  Cal.  567 

144  Cal.  391 

145  Cal.  634 
145  Cal.  688 

147  Cal.  535 

148  Cal.  382 
148  Cal.  629 
148  Cal.  752 

150  Cal.  82 

151  Cal.  470 

151  Cal.  652 

152  Cal.  7 
152  Cal.  230 

152  Cal.  594 

153  Cal.  165 

154  Cal.  225 

154  Cal.  331 

155  Cal.  381 
155  Cal.  610 
155  Cal.  788 
157  Cal.  418 

157  Cal.  716 

158  Cal.  85 

159  Cal.  437 

160  Cal.  37 

160  Cal.  131 

161  Cal.  280 

166  Cal.  608 

167  Cal.  312 
1  "  App.  633 

3  "  App.  274 

4  "  App.  238 

5  "  App.  578 


CITATIONS    TO    CONSTITUTION    OF    1879. 


639 


Art.  XT  See.  6 
(Con.) 

Page 
App.  581 
App.  223 
App.  55 
App.  781 
App.  468 
App.  361 
App.  406 
App.  529 
App.  277 
App.  583 
App.  774 
App.  588 
App.  347 
App.  514 


Vol, 

5 

6 

8 

9 

10 

11 

11 

12 

13 

13 

13 

15 

24 

25 


Art.  XI  Sec.  7 


55  Cal. 

56  Cal. 
58  Cal. 

60  Cal. 

61  Cal. 
61  Cal. 
84  Cal. 
91  Cal. 

Ill  Cal. 
lUCal. 
126  Cal. 
129  Cal. 


247 
104 
566 
81 
37 
277 
306 
590 
103 
320 
409 
574 


Art.  XI  Sec.  7i 
26  "  App.  581 


Art.  XI 
55  Cal. 

55  Cal. 

56  Cal. 

60  Cal. 

61  Cal. 
61  Cal. 
69  Cal. 
73  Cal. 
79  Cal. 
82  Cal. 
85  Cal. 

85  Cal. 

86  Cal. 

87  Cal. 
92  Cal. 
97  Cal. 

105  Cal. 
114  Cal. 


Sec.  8 
253 
613 
104 

81 
277 
231 
477 

82 
176 
342 
335 
345 

40 
606 
612 
593 
624 
147 


Art.  XI  Sec.  8 

(Con.) 
Vol.       Page 

114  Cal.    364 

115  Cal.    516 

119  Cal.  233 
121  Cal.  265 
121  Cal.  553 
123  Cal.  605 
126  Cal.    390 

128  Cal.    463 

129  Cal.    574 

130  Cal.     89 

131  Cal.    264 

132  Cal.    375 

133  Cal.    104 

134  Cal.  52 
138  Cal.    131 

141  Cal.    207 

142  Cal.    300 

143  Cal.  556 
143  Cal.  560 
143  Cal.  569 
145  Cal.  175 
145  Cal.  291 
145  Cal.    742 

147  Cal.    530 

148  Cal.    133 

150  Cal.     74 

151  Cal.    467 

152  Cal.      9 

153  Cal.  164 
155  Cal.    608 

157  Cal.    147 

158  Cal.  78 
160  Cal.     46 

160  Cal.    131 

161  Cal.    280 

162  Cal.  100 
166  Cal.     79 

4  "  App.  238 
6  "  App.  219 

8  "  App.  235 

9  "  App.  781 
10  "  App.  384 
25  "  App.  514 
25  "  App.  688 

Art.  XI  Sec.8i 

120  Cal.  399 
126  Cal.  406 
128  Cal.  462 
132  Cal.    441 

135  Cal.  514 

136  Cal.  586 
145  Cal.  53 
14.1  Cal.  742 


Art.  XI  Sec.  84 
(Con.) 


Vol. 

148  Cal. 
151  Cal. 
153  Cal. 
157  Cal. 
157  Cal. 
160  Cal. 
167  Cal. 
3  "  App 


6 

6 

13 

15 

25 
26 


App 
App 
App 
App 
App 
App 


Page 
133 
470 
164 
419 
484 
209 
312 
719 
224 
738 
773 
588 
688 
743 


Art.  XI  Sec.  9 

61  Cal.  277 

62  Cal.  503 
62  Cal.  566 
81  Cal.  590 
85  Cal.  596 
87  Cal.  396 
92  Cal.  319 

94  Cal.  603 

95  Cal.  473 
98  Cal.  221 

104  Cal.  644 

109  Cal.  508 

114  Cal.  123 

118  Cal.  309 

118  Cal.  362 

129  Cal.  527 

136  Cal.  65 

138  Cal.  16 

144  Cal.  277 

145  Cal.  197 
155  Cal.  754 
157  Cal.  157 
162  Cal.  615 
165  Cal.  87 
167  Cal.  520 

8  "  App.  22 

8  "  App.  44 

11  "  App.  578 

14  "  App.  664 

18  "  App.  387 

19  "  App.  771 


Art.  XI  Sec.  10 

61  Cal.  277 

92  Cal.  319 

104  Cal.  644 


Art.  XI  Sec.  11 


Vol. 
57  Cal. 
61  Cal. 
61  Cal. 
65  Cal. 

65  Cal. 

66  Cal. 

67  Cal. 

68  Cal. 

69  Cal. 
69  Cal. 

72  Cal. 

73  Cal. 
73  Cal. 
73  Cal. 

73  Cal. 

74  Cal. 
84  Cal. 
87  Cal. 

90  Cal. 

91  Cal. 
'94  Cal. 
96  Cal. 
96  Cal. 
98  Cal. 

98  Cal. 

99  Cal. 

102  Cal. 

103  Cal. 

104  Cal. 

105  Cal. 

106  Cal. 

108  Cal. 

109  Cal. 
112  Cal. 
124  Cal. 
129  Cal. 
131  Cal. 
134  Cal. 
134  Cal. 
134  Cal. 

139  Cal. 

140  Cal. 
143  Cal. 
145  Cal. 
147  Cal. 

149  Cal. 

150  Cal. 
152  Cal. 
154  Cal. 

154  Cal. 

155  Cal. 
158  Cal. 

162  Cal. 

163  Cal. 
163  Cal. 


Page 
607 
277 
375 

35 
270 
450 
103 
29(> 

90 
151 
115 

77 
148 
371 
633 

23 
305 
165 
620 
590 
391 
356 
608 
556 
684 
560 
489 
114 
644 
616 
283 
327 
321 

70 
348 
574 
466 

70 
111 
145 
183 
230 
371 
631 
334 
761 

80 
470 
322 
682 
117 
745 
711 
220 
459 


640 


CITATIONS    TO   CONSTITUTION    OF    1879. 


Art.  XI  Sec.  11 

Art.  XI  Sec.  12 

Art.  XI 

Sec.  16 

Art.  XI  Sec.  18 

(Con.) 

(Con.) 

Vol. 

Page 

(Con.) 

Vol.       Page 

Vol. 

Page 

61  Cal. 

277 

Vol. 

Page 

164  Cal.    324 

124  Cal. 

696 

87  Cal. 

607 

160  Cal. 

41 

166  Cal.      9 

129  Cal. 

604 

92  Cal. 

319 

160  Cal. 

318 

168  Cal.    303 

134  Cal. 

148 

97  Cal. 

219 

160  Cal. 

433 

169  Cal.    492 

143  Cal. 

567 

103  Cal. 

493 

168  Cal. 

592 

1  "  App.  184 

144  Cal. 

333 

108  Cal. 

565 

7  "  App. 

412 

2  "  App.  722 

150  Cal. 

90 

112  Cal. 

315 

17  "  App. 

293 

5  "  App.  499 

154  Cal. 

335 

112  Cal. 

329 

23  "  App. 

583 

5  "  App.  597 

167  Cal. 

286 

113  Cal. 

211 

24  "  App. 

354 

6  "  App.  10 

168  Cal. 

155 

146  Cal. 

719 

8  "  App.  297 

5  "  App. 

648 

8  "  App.  443 

8  "  App. 

439 

Art.  XI  Sec.  19 

8  "  App.  565 

Art.  XI 

Sec.l6i 

54  Cal. 

246 

8  "  App.  679 

152  Cal. 

8 

61  Cal. 

24 

9  "  App.  74 
9  "  App.  781 

Art.  XI  Sec.  13 

61  Cal. 

62  Cal. 

277 
108 

10  "  App.  604 

55  Cal. 

618 

Art.  XI 

Sec.  17 

62  Cal. 

232 

11  "  App.  514 

12  "  App.  259 
12  "  App.  326 
17  "  App.  60 
20  "  App.  270 
20  "  App.  363 

59  Cal. 

60  Cal. 

61  Cal. 
64  Cal. 
71  Cal. 
71  Cal. 

96 
32 
277 
507 
312 
313 

61  Cal. 

87  Cal. 

97  Cal. 
113  Cal. 
136  Cal. 

277 
608 
219 
211 
445 

69  Cal. 
69  Cal. 

72  Cal. 

73  Cal. 

92  Cal. 

93  Cal. 

466 
482 
6 
75 
342 
161 

21  "  App.  277 

71  Cal. 

631 

98  Cal. 

618 

22  "  App.  120 

80  Cal. 

270 

118  Cal. 

5 

23  "  App.  787 

86  Cal. 

48 

Art.  XI 

Sec.  18 

118  Cal. 

483 

25  "  App.  513 

87  Cal. 

607 

61  Cal. 

277 

118  Cal. 

584 

25  "  App.  597 

97  Cal. 

219 

62  Cal. 

642 

129  Cal. 

402 

26  "  App.  122 

99  Cal. 

560 

74  Cal. 

259 

137  Cal. 

118 

112  Cal. 

329 

74  Cal. 

417 

142  Cal. 

287 

112  Cal. 

564 

75  Cal. 

505 

143  Cal. 

371 

Art.  XI  Sec.  12 

118  Cal. 

308 

92  Cal. 

342 

145  Cal. 

632 

58  Cal.    644 

125  Cal. 

193 

97  Cal. 

219 

148  Cal. 

315 

60  Cal.     32 

126  Cal. 

134 

99  Cal. 

413 

150  Cal. 

558 

60  Cal.    155 

133  Cal. 

103 

107  Cal. 

648 

151  Cal. 

428 

61  Cal.    277 

144  Cal. 

333 

109  Cal. 

153 

152  Cal. 

586 

62  Cal.    643 

148  Cal. 

631 

Ill  Cal. 

322 

153  Cal. 

27 

65  Cal.    270 

150  Cal. 

82 

112  Cal. 

163 

155  Cal. 

651 

66  Cal.    451 

152  Cal. 

234 

112  Cal. 

313 

158  Cal. 

82 

69  Cal.     90 

168  Cal. 

155 

112  Cal. 

326 

160  Cal. 

38 

69  Cal.    610 

23  "  App 

580 

112  Cal. 

540 

160  Cal. 

111 

71  Cal.    313 

113  Cal. 

202 

161  Cal. 

281 

73  Cal.     77 

lis  Cal. 

530 

163  Cal. 

111 

73  Cal.    371 

Art.  XT  Sec.  14 

119  Cal. 

44 

163  Cal. 

671 

74  Cal.    117 

55  Cal. 
59  Cal. 

618 
279 

277 

77 

607 

119  Cal. 

227 

166  Cal. 

773 

87  Cal.    607 

124  Cal. 

67 

168  Cal. 

301 

92  Cal.    319 

61  Cal. 

131  Cal. 

397 

168  Cal. 

450 

97  Cal.    218 

73  Cal! 
87  Cal. 

135  Cal. 

500 

168  Cal. 

601 

99  Cal.    560 

136  Cal. 

405 

169  Cal. 

323 

100  Cal.    272 

164  Cal. 

324 
511 

143  Cal. 

179 

169  Cal. 

326 

102  Cal.    Ill 
102  Cal.    471 

25  "  App. 

144  Cal. 
146  Cal. 

395 
730 

169  Cal. 
169  Cal. 

480 
481 

104  Cal.    644 

148  Cal. 

709 

169  Cal. 

482 

112  Cal.     70 

150  Cal. 

86 

169  Cal. 

750 

117  Cal.     86 

Art.  XI  Sec.  15 

152  Cal. 

172 

169  Cal. 

751 

121  Cal.    551 

61  Cal. 

277 

153  Cal. 

374 

169  Cal. 

752 

CITATIONS   TO    CONSTITUTION   OF    1879. 


641 


Art.  XI  Sec.  19 

Art.  XII 

Sec.  3 

Art.  XII  Sec.  11 

Art.XIT  Sec.  16 

(Con.) 

(Con.) 

(Con.) 

(Con.) 

Vol.        Page 

Vol. 

Page 

Vol. 

Page 

Vol.       Page 

169  Cal.    753 

165  Cal. 

661 

152  Cal. 

457 

10  "  App.  72 

1  "  App.  673 

166  Cal. 

349 

154  Cal. 

75 

11  "  App.  226 

2  "  App.  560 

167  Cal. 

241 

157  Cal. 

729 

11  "  App.  239 

2  "  App.  722 

168  Cal. 

646 

159  Cal. 

216 

12  "  App.  227 

17  "  App.  342 

4  "  App.  292 

165  Cal. 

671 

15  "  App.  473 

18  "  App.  34 

5  "  App.  705 

2  "  App 

130 

22  "  App.  169 

19  "  App.  366 

12  "  App.  695 

20  "  Aqp 

701 

26  "  App.  346 

25  "  App.  504 

13  "  App.  27 

26  "  App.  195 

18  "  App.  738 

23  "  App.  466 

Art.  XII  Sec.  12 

Art.Xn  Sec.  17 

67  Cal. 

535 

132  Cal.    685 

Art.  XI  Sec.  21 

93  Cal. 

418 

2  "  App.  560 

72  Cal.    389 

Art.  Xn 

Sec.  4 

3  "  App.  683 

153  Cal. 

703 

Art.  XII  S€ 

C.14 

Art.  XII  Sec.  1 

135  Cal. 

584 

Art.  XII  Sec.  18 

61  Cal.     38 

Art.  XII 

Sec.  5 

135  Cal. 

625 

132  Cal.    686 

73  Cal.     77 

73  Cal. 

77 

2  "  App. 

639 

83  Cal.    413 

154  Cal. 

331 

13  "  App. 

27 

92  Cal.    316 

Art.Xn  Sec.  19 

123  Cal.    527 

132  Cal.    686 

125  Cal.    412 

Art.  XII 

Sec.  6 

Art.  XII  Se 

C.15 

145  Cal.    639 

131  Cal.     33 
153  Cal.    702 

160  Cal. 

122 

99  Cal. 

133 

154  Cal.    331 

115  Cal. 

311 

Art.Xn  Sec.  20 

155  Cal.    652 

157  Cal.    598 

160  Cal.    121 

1  "  App.  67 

11  "  App.  404 

Art.  XII 

91  Cal. 

121  Cal. 

Sec.  7 

340 

19 

146  Cal. 

155  Cal. 

156  Cal. 
158  Cal. 

651 

657 
468 
281 

132  Cal.    686 

133  Cal.  26 
144  Cal.    184 

154  Cal. 

328 

159  Cal. 

221 

155  Cal. 

650 

163  Cal. 
165  Cal. 

281 
660 

Art.  XII  See.  21 

Art.  XII  See.  2 

15  "  App. 

683 

109  Cal.  322 
132  Cal.    686 

62  Cal.    460 

Art.  XII 

Sec.  9 

144  Cal.    193 

125  Cal.    410 
160  Cal.    585 

107  Cal.    643 

133  Cal.    612 

3  "  ApD.  710 

Art.  XII  Se 
66  Cal. 

C.16 
209 

Art.Xn  Sec.  22 

71  Cal. 

488 

79  Cal.    163 

73  Cal. 

183 

105  Cal.    544 

Art.  XII  Sec.  3 
62  Cal.    461 

Art.  XII 

Sec.  10 

83  Cal. 
94  Cal. 

493 
137 

132  Cal.    678 

133  Cal.     26 

97  Cal.     95 

72  Cal. 

466 

98  Cal. 

167 

142  Cal.    225 

108  Cal.    425 

116  Cal. 

100 

102  Cal. 

48 

166  Cal.    650 

111  Cal.     63 

152  Cal. 

586 

106  Cal. 

58 

166  Cal.    691 

116  Cal.    384 

154  Cal. 

274 

107  Cal. 

380 

166  Cal.    743 

122  Cal.    523 

134  Cal. 

587 

124  Cal.    150 

136  Cal. 

439 

125  Cal.    410 

Art.  XII 

Sec.  11 

141  Cal. 

315 

Art.Xn  Sec.  23 

136  Cal.    437 

59  Cal. 

331 

144  Cal. 

205 

142  Cal.    225 

142  Cal.    384 

65  Cal. 

617 

150  Cal. 

468 

166  Cal.    650 

147  Cal.    640 

73  Cal. 

77 

151  Cal. 

159 

166  Cal.    691 

154  Cal.    353 

93  Cal. 

308 

159  Cal. 

696 

166  Cal.    743 

154  Cal.    782 

135  Cal. 

585 

4  "  .\pp. 

370 

167  Cal.    672 

160  Cal.    578 

147  Cal. 

582 

6  "  App. 

87 

168  Cal.    298 

Constitu 

tiou — 41 

642 


CITATIONS   TO    CONSTITUTION    OF    1879. 


Art.XII  Sec.  23 

(Con.) 

Vol.  Page 

169  Cal.  470 

169  Cal.  471 

169  Cal.  476 

Art.  XIIT  Sec.  1 

.56  Cal.  202 

57  Cal.  600 

59  Cal.  336 

G2  Cal.  108 

65  Cal.  457 

66  Cal.  603 
97  Cal.  220 
97  Cal.  324 

108  Cal.  192 

111  Cal.  86 

113  Cal.  397 

116  Cal.  23 

119  Cal.  521 

12S  Cal.  592 

128  Cal.  612 

131  Cal.  613 

132  Cal.  268 
132  Cal.  600 
134  Cal.  478 
137  Cal.  518 
139  Cal.  210 
142  Cal.  225 
142  Cal.  284 

148  Cal.  85 

149  Cal.  583 

152  Cal.  767 

153  Cal.  778 
155  Cal.  146 
155  Cal.  353 
155  Cal.  650 
157  Cal.  621 
160  Cal.  723 
160  Cal.  801 
163  Cal.  708 
167  Cal.  426 

2  "  App.  68 
2  "  App.  595 

Art.  XIII  Sec.  2 

104  Cal.  621 

137  Cal.  525 

149  Cal.  87 

Art.  XIII  Sec.  4 

59  Cal.  543 

60  Cal.  58 
m  Cal.  213 
72  Cal.  36 
91  Cal.  11 


Art.  XIIT  Sec.  4 

(Con.) 
Vol.       Page 

96  Cal.  625 

99  Cal.  609 

118  Cal.  492 

123  Cal.  355 

128  Cal.  592 

128  Cal.  610 

131  Cal.  361 

134  Cal.  86 

144  Cal.  435 

145  Cal.  55 
153  Cal.  615 
155  Cal.  353 
160  Cal.  74 
163  Cal.  709 

11  "  App.  463 

Art.  XIII  Sec.  5 
59  Cal.  544 
91  Cal.     11 

96  Cal.    626 
99  Cal.    608 

103  Cal.  376 

110  Cal.  541 

131  Cal.  604 

8  "  App.  670 

Art.  XIIT  Sec.  8 

56  Cal.    206 

61  Cal.    103 

73  Cal.    623 

8  "  App.  439 

Art.  XIII  Sec.  9 
56  Cal.  102 
56  Cal.  195 
59  Cal.    329 

61  Cal.     55 
67  Cal.    625 

97  Cal.    324 
17  "  App.  548 

Art.XIII  Sec.lO 

56  Cal.  201 

59  Cal.  325 

60  Cal.  28 
60  Cal.  58 

62  Cal.  565 

63  Cal.  469 

64  Cal.  483 
83  Cal.  401 

105  Cal.  591 
125  Cal.         499 


Art.XIII  Sec.lO 

(Con.) 
Vol.  Page 

128  Cal.  593 
137  Cal.  515 
137  Cal.         660 

142  Cal.    223 

143  Cal.    432 

148  Cal.    317 

149  Cal.  84 
153  Cal.  54 
158  Cal.  439 
164  Cal.  754 
167  Cal.  426 
169  Cal.         141 

2  "  App.  595 

5  "  App.  648 

14  "  App.  474 

22  "  App.  176 


Art.  XIII  See.  12 
104  Cal.  63 

135  Cal.         517 
148  Cal.         248 


Art.XIII   Sec.  12J 

137  Cal.         524 

Art.XIII  Sec. 13 

56  Cal.         202 

S3  Cal.         402 

17  "  App.  548 


Art.XIII  Sec.l4 


164  Cal. 

165  Cal. 

166  Cal. 
168  Cal. 
168  Cal. 

168  Cal. 
16«!Cal. 

169  Cal. 
169  Cal. 
169  Cal. 
169  Cal. 


42 
561 
246 
276 
422 
553 
763 
135 
139 
141 
142 


Art.XIII  Sec.l9 
19  "  App.  133 

Art.  XIV  Sec.  1 

60  Cal.  169 

61  Cal.  4 
61  Cal.  25 


Art.  XTV  Sec.  1 

(Con.) 

Vol.  Page 

62  Cal.  232 

74  Cal.  573 

82  Cal.  303 

90  Cal.  640 

100  Cal.  125 

107  Cal.  225 

112  Cal.  433 

118  Cal.  565 

122  Cal.  286 

129  Cal.  441 

130  Cal.  313 
139  Cal.  434 
142  Cal.  287 
144  Cal.  593 

150  Cal.  89 

151  Cal.  57 

152  Cal.  588 
152  Cal.  729 
157  Cal.  89 
159  Cal.  312 
159  Cal.  333 
164  Cal.  133 
164  Cal.  134 
168  Cal.  301 

168  cal.  593 

169  Cal.  778 
2  "  App.  187 
2  "  App.  413 
2  "  App.  417 
8  "  App.  169 

25  "  App.  712 


Art.  XIV  Sec.  2 

61  Cal.     38 

62  Cal.  108 
62  Cal.  233 
82  Cal.    304 

118  Cal.    579 

129  Cal.    441 

2  "  App.  600 

25  "  App.  712 


Art.  XV  Sec.  2 

132  Cal.  106 

164  Cal.  34 

166  Cal.  587 

169  Cal.  567 


Art.  XV  Sec.  3 

152  Cal.    735 

153  Cal.     46 


CITATIONS   TO    CONSTITUTION    OF    1879. 


"6^3 


Art.  XV    See.  3 

(Con.) 
Vol.  Page 

161  Cal.         613 

162  Cal.  90 

163  Cal.  544 
104  Cal.         408 

166  Cal.         603 

167  Cal.         446 
24  "  App.  200 

Art.  XVI  Seel 
144  Cal.  694 
148  Cal.         502 

Art.XVII  Seel 
111  Cal.  487 
156  Cal.         369 

11  "  App.  727 

12  "  App.  359 

Art.  XVITSec.2 

88  Cal.         455 

06  Cal.         118 

1  "  App.  150 

3  "  App.  245 

Art.  XVIISec.  3 
55  Cal.         103 

65  Cal.     13 

68  Cal.    508 

71  Cal.    321 

72  Cal.    240 

88  Cal.  45.5, 

89  Cal.  44 

90  Cal.  47 
96  Cal.  118 

146  Cal.  543 
148  Cal.  496 
148  Cal.  714 
158  Cal.    616 

164  Cal.  408 
1  "  App.  150 
3  "  App.  244 

Art.XVIIISec.l 

66  Cal.    633 

69  Cal.  468 
72  Cal.  6 
80  Cal.    213 

102  Cal.    117 

166  Cal.    252 

1  "  App.  677 

11  "  App.  727 


Art.  XTX  See.  1 
A'ol.  Page 
84  Cal.  230 
126  Cal.  674 
147  Cal.    651 


Art.  XX  See.  1 
102  Cal.    119 

154  Cal.    281 

Art.  XX  See.  3 
133  Cal.    200 
151  Cal.    804 

155  Cal.    791 

Art.  XX  Sec.  4 
80  Cal.    234 
85  Cal.    416 

110  Cal.    451 

Art.  XX  See.  5 
93  Cal.    400 

Art.  XX  Sec.  6 
1  "  App.  144 
8  "  App.  510 

Art.  XX  See.  8 
147  Cal.    515 

Art.  XX  See.  9 

58  Cal.    472 

113  Cal.    139 

138  Cal.    553 

3  "  App.  747 

Art.  XX  Sec.  10 
154  Cal.    281 

Art.XXSec.il 
120  Cal.  375 
154  Cal.    281 

Art.  XX  See.  13 

143  Cal.    549 

159  Cal.    444 

7  "  App.  152 


Art.  XX  Sec.  15 

Vol.       Page 

61  Cal.    353 

89  Cal.    Ill 

98  Cal.    151 

107  Cal.    623 

136  Cal.    125 

138  Cal.    545 

142  Cal.    242 

148  Cal.    737 

150  Cal.    792 

167  Cal.    235 

169  Cal.    316 

1  "  App.  308 

2  "  App.  507 

3  "  App.  480 
5  "  App.  759 
8  "  App.  508 
8  "  App.  518 

10  "  App.  92 

13  "  App.  624 

14  "  App.  302 
18  "  App.  599 


Art.  XX  See.  16 

55  Cal.    524 

66  Cal.    655 

79  Cal.    113 

82  Cal.    495 

85  Cal.    416 

93  Cal.    155 

100  Cal.    264 

110  Cal.    451 

127  Cal.    392 

132  Cal.    450 

136  Cal.    581 

136  Cal.    654 

138  Cal.     16 

145  Cal.    471 

157  Cal.    483 

161  Cal.    202 

1  "  App.   7 

6  "  App.  222 


Art.  XX  Sec.  17 
151  Cal.    804 


Art.  XX  Sec.  18 
57  Cal.  605 
60  Cal.  82 
96  Cal.  361 
98  Cal.    556 

162  Cal.         691 


Art.  XX  See.  20 

Vol.  Page 

53  Cal.  747 

62  Cal.  565 

96  Cal.  291 

99  Cal.  44 

9  "  App.  163 

Art.XXII  Sec.  1 

53  Cal.  747 

54  Cal.  247 

55  Cal.  249 
55  Cal.  334 

57  Cal.  627 
60  Cal.  155 
60  Cal.  278 

60  Cal.  514 

61  Cal.  4 
61  Cal.  32 
61  Cal.  279 
61  Cal,  353 
67  Cal.  382 
69  Cal.  467 
69  Cal.  485 
71  Cal.  312 
75  Cal.  153 
93  Cal.  40 
93  Cal.  424 

114  Cal.  563 

119  Cal,  428 

121  Cal.  551 

152  Cal.  736 

154  Cal.  200 

154  Cal.  339 

157  Cal.  779 

160  Cal.  586 

164  Cal.  325 

166  Cal.  587 

1  "  App.  64 

12  "  App.  291 

13  "  App.  624 
22  "  App.  528 

Art.XXII  Sec.  2 

60  Cal.  515 

Art.XXII  Sec.  3 

54  Cal,  186 

54  Cal.  346 

55  Cal.  463 

58  Cal.  90 
60  Cal.  307 
60  Cal.  515 
66  Cal.  204 

114  Cal.  331 

169  Cal.  51 


644 


CITATIONS   TO   CONSTITUTION    OF    1879, 


Art.XXII  See.  9 

Vol. 

Page 

155  Cal. 

734 

A.rt.XXIISec.10 

55  Cal. 

611 

56  Cal. 

99 

57  Cal. 

626 

60  Cal. 

307 

62  Cal. 

557 

62  Cal. 

566 

114  Cal. 

333 

Art.XXII  Sec.U 

64  Cal. 

235 

64  Cal. 

378 

93  Cal. 

40 

103  Cal. 

491 

114  Cal. 

331 

116  Cal. 

195 

1  "  App 

574 

Art.XXIISec.l2 

56  Cal. 

99 

57  Cal. 

627 

TABLE  OF  UNITED  STATES  AND  FEDERAL 

CITATIONS  TO  THE  CONSTITUTION 

OF  CALIFORNIA  OF  1849. 

Volumes  1  to  and  including  238  V.  S.  Reports. 
Volumes  101  to  and  including  225  Federal  Reporter. 


Art.  T,     Sec.  8. 

Art.  IV, 

Sec.  31. 

Art.  VI, 

Sec.  4. 

Art.  VI, 

Sec.  9. 

Vol.       Page 

Vol. 

Page 

Vol. 

Page 

Vol. 

Page 

110  U.S.   557 

99  U.  S. 

728 

4  Wall. 

426 

128  U.  S. 

78 

142  U.  S.   568 

99  U.  S. 
110  U.S. 

731 

348 

128  U.  S. 

79 

192  U.  S. 

201 

Art.  VI, 

Sec.  6. 

Art.  XII, 

Sec.  22. 

Art.  I,    Sec.  17. 

128  U.  S. 

78 

167  U.S. 

495 

113  U.  S.    96 

Art.  V. 

Sec.  1. 

21  Wall. 

515 

Art.  VI, 
21  Wall. 

Sec.  8. 
515 

Art.  XIV. 
116  U.S. 

Sec.  1. 
362 

Art.  IV,   Sec.  4. 

Art.  VI. 

Sec.  1. 

128  U.  S. 

79 

Art.  XIV, 

Sec.  2. 

110  U.  S.   349 

128  U.  S. 

78 

128  U.  S. 

80 

110  U.  S. 

351 

(645) 


4 


TABLE  OF  UNITED  STATES  AND  FEDERAL 

CITATIONS  TO  THE  CONSTITUTION 

OF  CALIFORNIA  OF  1879. 

Volumes  1  to  and  including  238  XJ.  S.  Reports. 
Volumes  101  to  and  including  225  Federal  Reporter. 


Art.  I,  Sec.  3. 

Vol.  Page 

167  U.  S.        176 

Art.  I,  Sec.  8. 

110  U.  S.  516 
191 U.  S.  60 

Art.  I,  Sec.  13. 
167  U.  S.        175 

Art.  I,  Sec.  17. 
113  U.S.  89 

180  U.  S.        333 

Art.  I,  Sec.  19. 
167  U.  S.         175 

Art.  IV,  Sec.  25. 
159  Fed.        994 

Art.  IV,  Sec.  26. 
166  U.  S.  488 
166  U.  S.  487 
187  U.  S.        606 

Art.  IV,  Sec.  31. 
177  U.S.        575 

Alt.  VI.  Sec.  1. 
128  U.  S.  53 

Art.  VI,  Sec.  6. 

Vol.  Page 

128  U.S.  53 

237  U.S.  502 


Art.  VI.  Sec.  8. 

Vol.  Page 

128  U.  S.  53 

128  U.  S.  82 

237  U.S.  502 

Art.  VI,  Sec.  9. 

128  U.  S.  53 

Art.  IX.  Sec.  2. 

112  U.  S.  233 

Art.  IX,  Sec.  10. 

127  U.  S.  34 

Art.  XI,  Sec.  11. 

113  U.  S.  703 
lis  U.S.  356 
137  U.  S.  86 
195  U.S.  223 
199  U.  S,  306 
126  Fed.  30 

Art.  XI,  Sec.  18. 

184  U.S.  302 

202  Fed.  357 


Art.  XI, 

195  U.  S. 
224  U.  S. 
228  U.  S. 
233  U.  S. 
185  Fed. 

Art.  XII, 
164  Fed. 
170  Fed. 

196  Fed. 


Sec.  19. 
223 
330 
454 
195 
281 

Sec.  3. 
680 
362 
646 


Art.  XII,  Sec.  15. 

\o\.  Page 

183  U.  S.  144 

186  U.S.  165 

117  Fed.  900 

170  Fed.  362 

192  Fed.  495 

Art.  XII,  Sec.  17. 
110  U.  S.   679 

Art.  XII,  Sec.  21. 
226  Fed.  349 
226  Fed.    351 

Art.  XII,  Sec.  22. 
167  U.S.  479 
226  Fed.  349 
226  Fed.    351 

Art.  XIII,  SfiC.  1. 

lis  U.  S.  394 

162  U.S.  91 

197  U.  S.  70 

197  U.  S.  146 

117  Fed.  900 

136  Fed.  138 


Art.  XIII, 
118  U.S. 

Art.  XIII, 
1]8U.  S. 
149  U.  S. 
162  U.S. 

Art.  XIII, 
109  Fed. 


Sec.  2. 

412 

Sec.  4. 

404 

308 

91 

Sec.  8. 
726 


Art.  XIII,  Sec.  9. 

Vol.  Page 

118  U.S.  394 

118  U.  S.  405 

127  U.  S.  1 


Art.  XIII,  Sec.  10. 

118  U.  S.  394 

118  U.S.  405 

lis  U.S.  411 

127  U.  S.  1 

127  U.S.  28 

127  U.  S.  29 

127  U.  S.  33 

162  U.  S.  91 


Art.  XIII,  Sec.  14. 
225  Fed.    728 


Art.  XIV. 
164  U.  S. 


159 


Art.  XIV,  Sec.  1. 

110  U.S.  347 

164  U.  S.  112 

174  U.S.  739 

228  U.S.  454 

104  Fed.  706 

197  Fed.  4 

Art.  XIV,  Sec.  2. 

110  U.S.  347 

110  U.S.  350 

228  U.  S.  454 

Art.  XVII,  Sec.  1. 

198  U.  S.  202 


(647). 


I 


TABLE  OF  CALIFORNIA  RAILROAD  COMMISSION 
CITATIONS  TO  CONSTITUTION  OF  1879. 


Art. 

I, 

Sec. 

16: 

4  C 

Art. 

VI, 

Sec. 

4a: 

6  C 

Art. 

XI, 

Sec. 

8: 

4  C 

Art. 

XI, 

Sec. 

11: 

3  C 

Art. 

XII, 

Sec. 

11: 

Art. 

XII, 

Sec. 

17: 

Art. 

XII, 

Sec. 

20: 

Art. 

XII, 

Sec. 

21: 

I 


R.  C.  298. 

R.  C.  512. 

R.  C.  1083. 

R.  C.  144, 

4  C.  R.  C.  324,  1080,  1082,  1083. 

Art.    XI,  Sec.  19:  3  C.  R.  C.  64,  801,  936,  956,  1170,  1172, 

4  C.  R.  C.  297,  445,  1080,  1082,  1083. 

5  C.  R.  C.  301. 

6  C.  R.  C.  536,  848. 
1  C.  R.  C.  318. 
1  C.  R.  C.  630. 

1  C.  R.  C.  97,  115. 
21:  1  C.  R.  C.  69,  70,  71,  75,  77,  97,  103,  104,  114, 

115,  571,  572,  693. 

2  C.  R.  C.  628,  635,  637,  967. 

3  C.  R.  C.  33,  337,  340,  342,  344,  532,  872. 

4  C.  R.  C.  413,  650,  653,  654,  656,  964,  966,  967, 

969,  970,  972,  973,  974, 
€  C.  R.  C.  453. 
Art.   XII,  Sec.  22:  1  C.  R.  C.  752. 

2  C.  R.  C.  364,  366,  477,  630,  631,  632,  636,  637, 

3  C.  R.  C.  45,  579,  580,  802. 

Art.   XII,  Sec.  23:  2  C.  R.  C.  364,  457,  477,  502,  708,  709,  712. 

3  C.  R.  C.  45,  64,  144,  612,  613,  802,  953,  958. 

4  C.  R.  C.  298,  905,  1079. 

5  C.  R.  C.  85,  165,  302. 

6  C.  R.  C.  319,  515,  948. 
Art.  XII,  Sec.  23a:  6  C.  R.  C.  508,  515. 

Art.  XIV,  Sec.   1:  2  C.  R.  C.  54,  55,  56,  60,  477,  485,  489,  501. 

3  C.  R.  C.  419. 

4  C.  R.  C.  1080,  1082,  1083. 

Art.     XIV,  Sec.       2:   2  C.  R.  C.  54,  55,  56,  60,  477,  485,  501. 

6  C.  R.  C.  536. 
Art.     XIX,  Sec.     11:   1  C.  R.  C.  528,  529. 
Art.  XXII,  Sec.     17:  3  C.  R.  C.  45. 

(649) 


I 


I 


APPENDIX. 

(651) 


CONSTITUTION 


OF  THB 


STATE  OF  CALIFORNIA. 


Adopted  by  the  Convention,  October  10,  1849 ;  Ratified  by 

THE  People,  November  13,  1849;  Proclaimed, 

December  20,  1849 ;  and  Amended 

IN  1857,  1862,  AND  1871. 


PREAMBLE. 
We,  the  people  of  California,  grateful  to  Almighty  God 
for  our  freedom,  in  order  to  secure  its  blessings,  do  estab- 
lish this  Constitution. 

ARTICLE  I. 

DECLAEATIOX  OF  EIGHTS. 
Section  1.  All  men  are  by  nature  free  and  independent, 
and  have  certain  inalienable  rights,  among  which  are  those 
of  enjoying  and  defending  life  and  liberty ;  acquiring,  pos- 
sessing, and  protecting  property,  and  pursuing  and  obtain- 
ing safety  and  happiness. 

Sec.  2.  All  political  power  is  inherent  in  the  people. 
Government  is  instituted  for  the  protection,  security,  and 
benefit  of  the  people,  and  they  have  the  right  to  alter  or 
reform  the  same  whenever  the  public  good  may  require  it. 

Sec.  3.  The  right  of  trial  by  jury  shall  be  secured  to  all, 
and  shall  remain  inviolate  forever ;  but  a  jury  trial  may  be 
waived  by  the  parties,  in  all  civil  cases,  in  the  manner  to  be 
prescribed  by  law. 

Sec.  4.  The  free  exercise  and  enjoyment  of  religious 
profession  and  worship,  without  discrimination  or  prefer- 

(653) 


Art.  I,  §§  5-9 


CONSTITUTION    OF    1849. 


C54 


ence,  shall  forever  be  allowed  in  this  state;  and  no  person 
shall  be  rendered  incompetent  to  be  a  witness  on  account 
of  his  opinions  on  matters  of  religious  belief,  but  the  liberty 
of  conscience  hereby  secured  shall  not  be  so  construed  as  to 
excuse  acts  of  licentiousness,  or  justify  practices  inconsis- 
tent with  the  peace  or  safety  of  this  state. 

Sec.  5.  The  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended,  unless  when,  in  cases  of  rebellion  or  inva- 
sion, the  public  safety  may  require  its  suspension. 

Sec.  6.  Excessive  bail  shall  not  be  required,  nor  exces^ 
sive  fines  imposed;  nor  shall  cruel  or  unusual  punishments 
be  inflicted ;  nor  shall  witnesses  be  unreasonably  detained. 

Sec.  7.  All  persons  shall  be  bailable  by  sufficient  sure- 
ties, unless  for  capital  offenses  when  the  proof  is  evident  or 
the  presumption  great. 

Sec.  8,  .  No  person  shall  be  held  to  answer  for  a  capital 
or  otherwise  infamous  crime  (except  in  cases  of  impeach- 
ment, and  in  cases  of  militia  when  in  actual  service,  and  the 
land  and  naval  forces  in  time  of  war,  or  which  this  state 
may  keep,  with  the  consent  of  Congress,  in  time  of  peace, 
and  in  cases  of  petit  larceny,  under  the  regulation  of  the 
legislature)  unless  on  presentment  or  indictment  of  a  grand 
jury;  and,  in  any  trial  in  any  court  whatever,  the  party 
accused  shall  be  allowed  to  appear  and  defend,  in  person 
and  with  counsel,  as  in  civil  actions.  No  person  shall  be 
subject  to  be  twice  put  in  jeopardy  for  the  same  offense; 
nor  shall  he  be  compelled,  in  any  criminal  case,  to  be  a  wit- 
ness against  himself;  nor  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law ;  nor  shall  private  prop- 
erty be  taken  for  public  use  without  just  compensation. 

Sec.  9.  Every  citizen  may  freely  speak,  write,  and  pub- 
lish his  sentiments  on  all  subjects,  being  responsible  for  the 
abuse  of  that  right ;  and  no  law  shall  be  passed  to  restrain 
or  abridge  the  liberty  of  speech  or  of  the  press.  In  all 
criminal  prosecutions  on  indictments  for  libels,  the  truth 
may  be  given  in  evidence  to  the  jury ;  and  if  it  shall  appear 
to  the  jury  that  the  matter  charged  as  libelous  is  true,  and 


655  DECLARATION    OF   RIGHTS.         Art.  I,  §§  10-19 

was  published  with  good  motives  and  for  justifiable  ends, 
the  party  shall  be  acquitted;  and  the  jury  shall  have  the 
right  to  determine  the  law  and  the  fact. 

Sec.  10.  The  people  shall  have  the  right  freely  to  assem- 
ble together  to  consult  for  the  common  good,  to  instruct 
their  representatives,  and  to  petition  the  legislature  for 
redress  of  grievances. 

Sec.  11.  All  laws  of  a  general  nature  shall  have  a  uni- 
form operation. 

Sec.  12.  The  military  shall  be  subordinate  to  the  civil 
power.  No  standing  army  shall  be  kept  up  by  this  state  in 
time  of  peace ;  and,  in  time  of  war,  no  appropriation  for  a 
standing  army  shall  be  for  a  longer  time  than  two  years. 

Sec.  13.  No  soldier  shall,  in  time  of  peace,  be  quartered 
in  any  house  without  the  consent  of  the  owner;  nor  in  time 
of  war,  except  in  the  manner  to  be  prescribed  by  law. 

Sec.  14.  Representations  shall  be  apportioned  according 
to  population. 

Sec.  15.  No  person  shall  be  imprisoned  for  debt  in  any 
civil  action,  on  mesne  or  final  process,  unless  in  cases  of 
fraud;  and  no  person  shall  be  imprisoned  for  a  militia  fine 
in  time  of  peace. 

Sec.  16.  No  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts,  shall  ever  be  passed. 

Sec.  17.  Foreigners  who  are  or  who  may  hereafter  become 
bona  fide  residents  of  this  state,  shall  enjoy  the  same  rights 
in  respect  to  the  possession,  enjoyment,  and  inheritance  of 
property  as  native-born  citizens. 

Sec.  18.  Neither  slavery  nor  involuntary  servitude,  unless 
for  the  punishment  of  crime,  shall  ever  be  tolerated  in  this 
state. 

Sec.  19.  The  right  of  the  people  to  be  secure  in  their  per- 
sons, houses,  papers,  and  effects,  against  unreasonable  seiz- 
ures and  searches,  shall  not  be  violated ;  and  no  warrant  shall 
issue,  but  on  probable  cause,  supported  by  oath  or  afifirniation, 
particularly  describing  the  place  to  be  searched  and  the  per- 
sons and  things  to  be  seized. 


Art.  II,  §§  1-4  CONSTITUTION   OF    1849. 


656 


See.  20.  Treason  against  the  state  shall  consist  only  in 
levying  M^ar  against  it,  adhering  to  its  enemies,  or  giving  them 
aid  and  comfort.  No  person  shall  be  convicted  of  treason, 
unless  on  the  evidence  of  two  witnesses  to  the  same  overt 
act,  or  confession  in  open  court. 

Sec.  21.  This  enumeration  of  rights  shall  not  be  con- 
strued to  impair  or  deny  others  retained  by  the  people. 

Sec.  22.  The  legislature  shall  have  no  power  to  make  an 
appropriation,  for  any  purpose  whatever,  for  a  longer  period 
than  two  years.  (Added  by  amendment,  ratified  Septem- 
ber 6,  1871.) 

ARTICLE  11. 

EIGHT  OF  SUFFEAGE. 

Section  1.  Every  white  male  citizen  of  the  United  States, 
and  every  white  male  citizen  of  Mexico  who  shall  have 
elected  to  become  a  citizen  of  the  United  States,  under  the 
treaty  of  peace  exchanged  and  ratified  at  Queretaro,  on  the 
thirtieth  day  of  May,  eighteen  hundred  and  forty-eight,  of 
the  age  of  twenty-one  years,  who  shall  have  been  a  resident 
of  the  state  six  months  next  preceding  the  election,  and  the 
county  or  district  in  which  he  claims  his  vote  thirty  days, 
shall  be  entitled  to  vote  at  all  elections  which  are  now  or 
hereafter  may  be  authorized  by  law ;  provided,  that  nothing 
herein  contained  shall  be  construed  to  prevent  the  legisla- 
ture, by  a  two-thirds  concurrent  vote,  from  admitting  to  the 
right  of  suffrage  Indians,  or  the  descendants  of  Indians,  in 
such  special  cases  as  such  a  proportion  of  the  legislative 
body  may  deem  just  and  proper. 

Sec.  2.  Electors  shall,  in  all  cases  except  treason,  felony, 
or  breach  of  the  peace,  be  privileged  from  arrest  on  the  days 
of  election,  during  their  attendance  at  such  election,  going 
to  and  returning  therefrom. 

Sec.  3.  No  elector  shall  be  obliged  to  perform  militia 
duty  on  the  day  of  election,  except  in  time  of  war  or  public 
danger. 

See.  4.  For  the  purpose  of  voting,  no  person  shall  be 
deemed  to  have  gained  or  lost  a  residence  by  reason  of  his 


657  LEGISLATIVE    DEPARTMENT.         Art.  IV,  §§  1,  2 

presence  or  absence  while  employed  in  the  service  of  the 
United  States,  nor  while  engaged  in  the  navigation  of  the 
waters  of  this  state  or  of  the  United  States,  or  of  the  high 
seas ;  nor  while  a  student  at  any  seminary  of  learning ;  nor 
while  kept  at  any  almshouse,  or  other  asylum,  at  public 
expense ;  nor  while  confined  in  any  public  prison. 

Sec.  5.  No  idiot  or  insane  person,  or  person  convicted  of 
any  infamous  crime,  shall  be  entitled  to  the  privilege  of  an 
elector. 

Sec.  6.     All  elections  by  the  people  shall  be  by  ballot. 
ARTICLE  III. 

DISTRIBUTION  OF  POWERS. 
Section  1.  The  powers  of  the  government  of  the  state  of 
California  shall  be  divided  into  three  separate  departments : 
The  legislative,  the  executive,  and  judicial;  and  no  person 
charged  with  the  exercise  of  poAvers  properly  belonging  to 
one  of  these  departments  shall  exercise  any  functions  apper- 
taining to  either  of  the  others,  except  in  the  cases  herein- 
after expressly  directed  or  permitted. 

ARTICLE  IV. 

LEGISLATIVE  DEPARTMENT. 
Section  1.  The  legislative  power  of  this  state  shall  be 
vested  in  a  senate  and  assembly,  which  shall  be  designated 
the  legislature  of  the  state  of  California,  and  the  enacting 
clause  of  every  law  shall  be  as  follows :  "The  People  of  the 
State  of  California  represented  in  Senate  and  Assembly,  do 
enact  as  follows." 

Sec.  2.  The  sessions  of  the  legislature  shall  be  biennial, 
and  shall  commence  on  the  first  Monday  of  December  next 
ensuing  the  election  of  its  members,  unless  the  governor  of 
the  state  shall,  in  the  interim,  convene  the  legislature  by 
proclamation.  No  session  shall  continue  longer  than  one 
hundred  and  twenty  days.  (Amended  1862.  The  original 
provided  for  annual  sessions,  beginning  on  first  Monday  of 
January.) 

Constitution — -42 


Art.  IV,  §§3-9        CONSTITUTION  OF  1849.'  G58 

Sec.  3.  The  members  of  the  assembly  shall  be  chosen 
biennially,  by  the  qualified  electors  of  their  respective  dis- 
tricts, on  the  first  Wednesday  in  September,  unless  other- 
wise ordered  by  the  legislature,  and  their  term  of  office  shall 
be  two  years.  (Amendment  ratified  September  3,  1862. 
The  original  provided  for  annual  elections  on  the  first  Tues- 
day after  the  first  Monday  in  November.) 

Sec.  4.  Senators  and  members  of  assembly  shall  be 
duly  qualified  electors  in  the  respective  counties  and  dis- 
tricts which  they  represent. 

Sec.  5.  Senators  shall  be  chosen  for  the  term  of  four 
years,  at  the  same  time  and  places  as  members  of  the  assem- 
bly; and  no  person  shall  be  a  member  of  the  senate  or  as- 
sembly who  has  not  been  a  citizen  and  inhabitant  of  the 
state  and  of  the  county  or  district  for  which  he  shall  be 
chosen  one  year  next  before  his  election.  (Amendment 
ratified  September  3,  1862.  Original  made  term  of  tAvo 
years,  and  residence  in  county  or  district  of  six  months.) 

Sec.  6.  The  number  of  senators  shall  not  be  less  than 
one-third,  nor  more  than  one-half,  of  that  of  the  members  of 
the  assembly;  and  at  the  first  session  of  the  legislature 
after  this  section  takes  effect,  the  senators  shall  be  divided 
by  lot,  as  equally  as  may  be,  into  tAvo  classes.  The  seats  of 
the  senators  of  the  first  class  shall  be  vacated  at  the  expira- 
tion of  the  second  year,  so  that  one-half  shall  be  chosen 
biennially.  (Amendment  ratified  September  3,  1862. 
Original  provided  for  annual  election.) 

Sec.  7.  When  the  number  of  senators  is  increased,  they 
shall  be  apportioned  by  lot,  so  as  to  keep  the  two  classes  as 
nearly  equal  in  number  as  possible. 

Sec.  8,  Each  house  shall  choose  its  own  officers,  and 
judge  of  the  qualifications,  elections,  and  returns  of  its  own 
members. 

Sec.  9.  A  majority  of  each  house  shall  constitute  a 
quorum  to  do  business;  but  a  smaller  number  may  adjourn 
from  day  to  day,  and  may  compel  the  attendance  of  absent 
members,  in  such  manner  and  under  such  penalties  as  each 
house  may  provide. 


659  LEGISLATIVE  DEPARTMENT.       Art.  IV,  §§  10-17 

Sec.  10.  Each  house  shall  determine  the  rules  of  its  own 
proceedings,  and  may,  with  the  concurrence  of  two-thirds  of 
all  the  members  elected,  expel  a  member. 

Sec.  11.  Each  house  shall  keep  a  journal  of  its  own  pro- 
ceedings, and  publish  the  same;  and  the  yeas  and  nays  of 
the  members  of  either  house  on  any  question  shall,  at  the 
desire  of  any  three  members  present,  be  entered  on  the 
journal. 

Sec.  12.  Members  of  the  legislature  shall,  in  all  cases 
except  treason,  felony,  and  breach  of  the  peace,  be  privi- 
leged from  arrest,  and  shall  not  be  subject  to  any  civil  pro- 
cess during  the  session  of  the  legislature,  nor  for  fifteen 
days  next  before  the  commencement  and  after  the  termina- 
tion of  each  session. 

Sec.  13.  When  vacancies  occur  in  either  house,  the  gov- 
ernor, or  the  person  exercising  the  functions  of  the  gov- 
ernor, shall  issue  writs  of  election  to  fill  such  vacancies. 

Sec.  14.  The  doors  of  each  house  shall  be  open,  except 
on  such  occasions  as,  in  the  opinion  of  the  house,  may  re- 
quire secrecy. 

Sec.  15.  Neither  house  shall,  without  the  consent  of  the 
other,  adjourn  for  more  than  three  days,  nor  to  any  other 
place  than  that  in  which  they  may  be  sitting. 

Sec.  16.  Any  bill  may  originate  in  either  house  of  the 
legislature,  and  all  bills  passed  by  one  house  may  be 
amended  in  the  other. 

Sec.  17.  Every  bill  which  may  have  passed  the  legis- 
lature shall,  before  it  becomes  a  law,  be  presented  to  the 
governor.  If  he  approve  it,  he  shall  sign  it,  but  if  not  he 
shall  return  it,  with  his  objections,  to  the  house  in  which  it 
originated,  which  shall  enter  the  same  upon  the  journal, 
and  proceed  to  reconsider  it.  If,  after  such  reconsideration, 
it  again  pass  both  houses  by  yeas  and  nays,  by  a  majority 
of  tvvo-thirds  of  the  members  of  each  house  present,  it  shall 
become  a  law,  notwithstanding  the  governor's  objections. 
If  any  bill  shall  not  be  returned  within  ten  days  after  it 
shall  have  been  presented  to  him  (Sundays  excepted),  the 


Art.  IV,  §§18-22     constitution  of  1849.  660 

same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it, 
unless  the  legislature,  by  adjournment,  prevent  such  return. 

Sec.  18.  The  assembly  shall  have  the  sole  power  of  im- 
peachment, and  all  impeachments  shall  be  tried  by  the  sen- 
ate. When  sitting  for  that  purpose,  the  senators  shall  be 
upon  oath  or  affirmation.;  and  no  person  shall  be  convicted 
without  the  concurrence  of  two-thirds  of  the  members 
present. 

Sec.  19.  The  governor,  lieutenant-governor,  secretary  of 
state,  controller,  treasurer,  attorney  general,  surveyor-gen- 
eral, justices  of  the  supreme  court,  and  judges  of  the 
district  courts,  shall  be  liable  to  impeachment  for  any  mis- 
demeanor in  office ;  but  judgment  in  such  cases  shall  extend 
only  to  removal  from  office  and  disqualification  to  hold  any 
office  of  honor,  trust,  or  profit  under  the  state ;  but  the 
party  convicted  or  acquitted  shall,  nevertheless,  be  liable 
to  indictment,  trial,  and  punishment  according  to  law.  All 
other  civil  officers  shall  be  tried  for  misdemeanors  in  office 
in  such  a  manner  as  the  legislature  may  provide. 

Sec.  20.  No  senator  or  member  of  assembly  shall,  during 
the  term  for  which  he  shall  have  been  elected,  be  appointed 
to  any  civil  office  of  profit  under  this  state  which  shall  have 
been  created  or  the  emoluments  of  which  shall  have  been 
increased  during  such  term,  except  such  offices  as  may  be 
filled  by  election  by  the  people. 

Sec.  21.  No  person  holding  any  lucrative  office  under  the 
United  States,  or  any  other  power,  shall  be  eligible  to  any 
civil  office  of  profit  under  this  state ;  provided,  that  officers 
in  the  militia  to  which  there  is  attached  no  annual  salary, 
or- local  officers  and  postmasters,  whose  compensation  does 
not  exceed  five  hundred  dollars  per  annum,  shall  not  be 
deemed  lucrative. 

Sec.  22.  No  person  who  shall  be  convicted  of  the  embez- 
zlement or  defalcation  of  the  public  funds  of  this  state  shall 
ever  be  eligible  to  any  office  of  honor,  trust,  or  profit  under 
this  state ;  and  the  legislature  shall,  as  soon  as  practicable, 
pass  a  law  providing  for  the  punishment  of  such  embezzle- 
ment or  defalcation  as  a  felony. 


661  LEGISLATIVE  DEPARTMENT.      Alt.  IV,  §§  23-29 

Sec.  23.  No  money  shall  be  drawn  from  the  treasury  but 
in  consequence  of  appropriations  made  by  law.  An  accu- 
rate statement  of  the  receipts  and  expenditures  of  the  pub- 
lic moneys  shall  be  attached  to  and  published  with  the  laws 
at  every  regular  session  of  the  legislature. 

Sec.  24.  The  members  of  the  legislature  shall  receive  for 
their  services  a  compensation  to  be  fixed  by  law,  and  paid 
out  of  the  public  treasury;  but  no  increase  of  the  compensa- 
tion shall  take  effect  during  the  term  for  which  the  mem- 
bers of  either  house  shall  have  been  elected. 

Sec.  25.  Every  law  enacted  by  the  legislature  shall  em- 
brace but  one  object,  and  that  shall  be  expressed  in  the 
title ;  and  no  law  shall  be  revised  or  amended  by  reference 
to  its  title ;  but  in  such  case  the  act  revised  or  section 
amended  shall  be  re-enacted  and  published  at  length. 

Sec.  26.     No  divorce  shall  be  granted  by  the  legislature. 

Sec.  27.  No  lottery  shall  be  authorized  by  this  state,  nor 
shall  the  sale  of  lottery  tickets  be  allowed. 

Sec.  28.  The  enumeration  of  the  inhabitants  of  this  state 
shall  be  taken,  under  the  direction  of  the  legislature,  in  the 
year  one  thousand  eight  hundred  and  fifty-two  and  one 
thousand  eight  hundred  and  fifty-five,  and  at  the  end  of 
every  ten  years  thereafter ;  and  these  enumerations,  to- 
gether with  the  census  that  may  be  taken  under  the  direc- 
tion of  the  Congress  of  the  United  States,  in  the  year  one 
thousand  eight  hundred  and  fifty  and  every  subsequent  ten 
years,  shall  serve  as  the  basis  of  representation  in  both 
houses  of  the  legislature. 

Sec.  29.  The  number  of  senators  and  members  of  assem- 
bly shall,  at  the  first  session  of  the  legislature  holden  after 
the  enumerations  herein  provided  for  are  made,  be  fixed  by 
the  legislature,  and  apportioned  among  the  several  counties 
and  districts  to  be  established  by  law,  according  to  the 
number  of  white  inhabitants.  The  number  of  members  of 
assembly  shall  not  be  less  than  twenty-four,  nor  more  than 
thirty-six,  until  the  number  of  inhabitants  within  this  state 
shall  amount  to  one  hundred  thousand ;  and,  after  that 
period,  in  such  ratio  that  the  whole  number  of  members  of 


Art.  IV,  §§  30-35      constitution  of  1849. 


662 


assembly   shall  never  be  less  than  thirty  nor  more  than 
eighty. 

See.  30.  "When  a  congressional,  senatorial,  or  assembly 
district  shall  be  composed  of  two  or  more  counties,  it  shall 
not  be  separated  by  any  county  belonging  to  another  dis- 
trict. No  county  shall  be  divided  in  forming  a  congres- 
sional, senatorial,  or  assembly  district  *so  as  to  attach  one 
portion  of  a  county  to  another  county;  but  the  legislature 
may  divide  each  county  into  as  many  congressional,  sena- 
torial, or  assembly  districts  as  such  county  may  by  appor- 
tionment be  entitled  to.  (Words  following  the  *  were 
added  by  amendment  ratified  September  3,  1862.) 

Sec.  31.  Corporations  may  be  formed  under  general 
laws,  but  shall  not  be  created  by  special  act,  except  for 
municipal  purposes.  All  general  laws  and  special  acts 
passed  pursuant  to  this  section  may  be  altered  from  time  to 
time,  or  repealed. 

Sec.  32.  Dues  from  corporations  shall  be  secured  by  such 
individual  liability  of  the  corporators  and  other  means  as 
may  be  prescribed  by  law. 

Sec.  33.  The  term  corporations,  as  used  in  this  article, 
shall  be  construed  to  include  all  associations  and  joint-stock 
companies  having  any  of  the  powers  or  privileges  of  corpo- 
rations not  possessed  by  individuals  or  partnerships.  And 
all  corporations  shall  have  the  right  to  sue  and  shall  be  sub- 
ject to  be  sued  in  all  courts,  in  like  cases  as  natural  persons. 

Sec.  34.  The  legislature  shall  have  no  power  to  pass  any 
act  granting  any  charter  for  banking  purposes,  but  associa- 
tions may  be  formed,  under  general  laws,  for  the  deposit  of 
gold  and  silver;  but  no  such  associations  shall  make,  issue, 
or  put  in  circulation  any  bill,  check,  ticket,  certificate,  prom- 
issory note,  or  other  paper,  or  the  paper  of  any  bank,  to  cir- 
culate as  money. 

Sec.  35.  The  legislature  of  this  state  shall  prohibit  by 
law  any  person  or  persons,  association,  company,  or  corpo- 
ration from  exercising  the  privileges  of  banking  or  creating 
paper  to  circulate  as  ioaoney. 


663  EXECUTIVE    DEPARTMENT.  Art.  V,  §§1-3 

Sec.  36.  Each  stockholder  of  a  corporation  or  joint- 
stock  association  shall  be  individually  and  personally  liable 
for  his  proportion  of  all  its  debts  and  liabilities. 

Sec.  37.  It  shall  be  the  duty  of  the  legislature  to  provide 
for  the  organization  of  cities  and  incorporated  villages,  and 
to  restrict  their  power  of  taxation,  assessment,  borrowing 
money,  contracting  debts,  and  loaning  their  credit,  so  as  to 
prevent  abuses  in  assessments  and  in  contracting  debts  by 
such  municipal  corporations. 

Sec.  38.  In  all  elections  by  the  legislature  the  members 
thereof  sliall  vote  viva  voce,  and  the  votes  shall  be  entered 
on  the  journal. 

Sec.  39.  In  order  that  no  inconvenience  may  result  to 
the  public  service  from  the  taking  effect  of  the  amendments 
proposed  to  article  IV  by  the  legislature  of  eighteen  hun- 
dred and  sixty-one,  no  officer  shall  be  suspended  or  super- 
seded thereby  until  the  election  and  qualification  of  the 
several  officers  provided  for  in  said  amendments.  (New 
section  ratified  September  3,  1862.) 

ARTICLE  V. 

EXECUTIVE  DEPARTMENT. 

Section  1.  The  supreme  executive  power  of  this  state 
shall  be  vested  in  a  chief  magistrate,  who  shall  be  styled 
the  governor  of  the  state  of  California. 

Sec.  2.  The  governor  shall  be  elected  by  the  qualified 
electors,  at  the  time  and  places  of  voting  for  members  of  the 
assembly,  and  shall  hold  his  office  four  years  from  and  after 
the  first  Monday  in  December  subsequent  to  his  election, 
and  until  his  successor  is  elected  and  qualified.  (Amend- 
ment ratified  September  3,  1862.  Original  provided  for 
term  of  two  years.) 

^  Sec.  3.  No  person  shall  be  eligible  to  the  office  of  gov- 
ernor (except  at  the  first  election)  who  has  not  been  a  citi- 
zen of  the  United  States  and  a  resident  of  this  state  two 
years  next  preceding  the  election,  and  attained  the  age  of 
twenty-five  years  at  the  time  of  said  election. 


Art.  V,  §§  4-11         CONSTITUTION  OF  1849.  664 

Sec.  4.  The  returns  of  every  election  for  governor  shall 
be  sealed  up  and  transmitted  to  the  seat  of  government, 
directed  to  the  speaker  of  the  assembly,  who  shall,  during 
the  first  week  of  the  session,  open  and  publish  them  in  pres- 
ence of  both  houses  of  the  legislature.  The  person  having 
the  highest  number  of  votes  shall  be  governor;  but,  in  case 
any  two  or  more  have  an  equal  and  the  highest  number  of 
votes,  the  legislature  shall,  by  joint  vote  of  both  houses, 
choose  one  of  said  persons  so  having  an  equal  and  the  high- 
est number  of  votes,  for  governor. 

Sec.  5.  The  governor  shall  be  commander  in  chief  of  the 
militia,  the  army,  and  navy  of  this  state. 

Sec.  6.  He  shall  transact  all  executive  business  with  the 
officers  of  government,  civil  and  military,  and  may  require 
information  in  writing  from  the  officers  of  the  executive 
department,  upon  any  subject  relating  to  the  duties  of  their 
respective  offices. 

Sec.  7.  He  shall  see  that  the  laws  are  faithfully  exe- 
cuted. 

Sec.  8.  When  any  office  shall,  from  any  cause,  become 
vacant,  and  no  mode  is  provided  by  the  Constitution  and 
law  for  filling  such  vacancy,  the  governor  shall  have  power 
to  fill  such  vacancy  by  granting  a  commission,  which  shall 
expire  at  the  end  of  the  next  session  of  the  legislature,  or  at 
the  next  election  by  the  people. 

Sec.  9.  He  may,  on  extraordinary  occasions,  convene  the 
legislature  by  proclamation,  and  shall  state  to  both  houses, 
when  assembled,  the  purpose  for  which  they  shall  have  been 
convened. 

Sec.  10.  He  shall  communicate  by  message  to  the  legis- 
lature, at  every  session,  the  condition  of  the  state,  and  rec- 
ommend such  matters  as  he  shall  deem  expedient. 

Sec.  11.  In  case  of  a  disagreement  between  the  two 
houses  with  respect  to  the  time  of  adjournment,  the  gov- 
ernor shall  have  power  to  adjourn  the  legislature  to  such 
time  as  he  may  think  proper ;  provided,  it  be  not  beyond 
the  time  fixed  for  the  meeting  of  the  next  legislature. 


665  EXECUTIVE   DEPARTMENT.        Art.  V,  §§  12-17 

Sec.  12.  No  person  shall,  while  holding  any  office  under 
the  United  States,  or  this  state,  exercise  the  office  of  gov- 
ernor, except  as  hereinafter  expressly  provided. 

Sec.  13.  The  governor  shall  have  the  power  to  grant  re- 
prieves and  pardons  after  conviction,  for  all  offenses,  except 
treason  and  cases  of  impeachment,  upon  such  conditions 
and  with  such  restrictions  and  limitations  as  he  may  think 
proper,  subject  to  such  regulations  as  may  be  provided  by 
law  relative  to  the  manner  of  applying  for  pardons.  Upon 
conviction  for  treason,  he  shall  have  the  power  to  suspend 
the  execution  of  the  sentence  until  the  case  shall  be  re- 
ported to  the  legislature  at  its  next  meeting,  when  the  legis- 
lature shall  either  pardon,  direct  the  execution  of  the  sen- 
tence, or  grant  a  further  reprieve.  He  shall  communicate 
to  the  legislature,  at  the  beginning  of  every  session,  every 
case  of  reprieve  or  pardon  granted,  stating  the  name  of  the 
convict,  the  crime  of  which  he  was  convicted,  the  sentence 
and  its  date,  and  the  date  of  the  pardon  or  reprieve. 

Sec.  14.  There  shall  be  a  seal  of  this  state,  which  shall 
be  kept  by  the  governor,  and  used  by  him  officially  and  shall 
be  called  "The  Great  Seal  of  the  State  of  California." 

Sec.  15.  All  grants  and  commissions  shall  be  in  the  name 
and  by  the  authority  of  the  people  of  the  state  of  Califor- 
nia, sealed  with  the  great  seal  of  the  state,  signed  by  the 
governor,  and  countersigned  by  the  secretary  of  state. 

Sec.  16.  A  lieutenant-governor  shall  be  elected  at  the 
same  time  and  places,  and  in  the  same  manner  as  the  gov- 
ernor ;  and  his  term  of  office,  and  his  qualifications  of  eligi- 
bility, shall  also  be  the  same.  He  shall  be  president  of  the 
senate,  but  shall  only  have  a  casting  vote  therein.  If,  dur- 
ing a  vacancy  of  the  office  of  governor,  the  lieutenant-gov- 
ernor shall  be  impeached,  displaced,  resign,  die,  or  become 
incapable  of  performing  the  duties  of  his  office,  or  be  absent 
from  the  state,  the  president  of  the  senate  shall  act  as  gov- 
ernor until  the  vacancy  be  filled  or  the  disability  shall 
cease. 

See.  17.  In  case  of  the  impeachment  of  the  governor,  or  his 
removal  from  office,  death,  inability  to  discharge  the  pow- 


Art.  V,  §§  18-20       CONSTITUTION  OF  1849. 


666 


ers  and  duties  of  the  said  office,  resignation,  or  absence 
from  the  state,  the  powers  and  duties  of  the  office  shall 
devolve  upon  the  lieutenant-governor  for  the  residue  of  the 
term,  or  until  the  disability  shall  cease.  But  when  the  gov- 
ernor shall,  with  the  consent  of  the  legislature,  be  out  of 
the  state  in  time  of  Avar,  at  the  head  of  any  military  force 
thereof,  he  shall  continue  commander  in  chief  of  all  the  mili- 
tary force  of  the  state. 

Sec.  18.  A  secretary  of  state,  a  controller,  a  treasurer, 
an  attorney  general,  and  a  surveyor-general  shall  be  elected 
at  the  same  time  and  places,  and  in  the  same  manner  as  the 
governor  and  lieutenant-governor,  and  whose  term  of  office 
shall  be  the  same  as  the  governor.  (Amendment  ratified 
September  3,  1862.) 

[ORIGINAL  SECTION.] 
See.  18.  A  secretary  of  state,  a  controller,  a  treasurer,  an  attor- 
ney general  and  surveyor  general  shall  be  chosen  in  the  manner  pro- 
vided in  this  Constitution;  and  the  term  of  office  and  eligibility  of 
each  shall  be  the  same  as  are  prescribed  for  the  governor  and  lieu- 
tenant-governor. 

Sec.  19.  The  secretary  of  state  shall  keep  a  fair  record 
of  the  official  acts  of  the  legislative  and  executive  depart- 
ments of  the  government,  and  shall,  when  required,  lay  the 
same,  and  all  matters  relative  thereto,  before  either  branch 
of  the  legislature,  and  shall  perform  such  other  duties  as 
may  be  assigned  him  by  laAv ;  and  in  order  that  no  inconven- 
ience may  result  to  the  public  service  from  the  taking  effect 
of  the  amendments  proposed  to  said  article  V  by  the  legis- 
lature of  eighteen  hundred  and  sixty-one,  no  officer  shall  be 
superseded  or  suspended  thereby,  until  the  election  and 
qualification  of  the  several  officers  provided  for  in  said 
amendments.  (Amendment  ratified  September  3,  1862. 
Original  provided  for  appointment  of  secretary  of  state  by 
the  governor.) 

Sec.  20.  The  controller,  treasurer,  attorney  general,  and 
surveyor-general,  shall  be  chosen  by  joint  vote  of  the  two 
houses  of  the  legislature  at  their  first  session  under  this  Con- 
stitution, and  thereafter  shall  be  elected  at  the  same  time 


667  JUDICIAL   DEPARTMENT.  Art.  VI,  §§1-4 

and  places,  and  in  the  same  manner,  as  the  governor  and 
lieutenant-governor. 

Sec.  21.  The  governor,  lieutenant-governor,  secretary  of 
state,  controller,  treasurer,  attorney  general,  and  surveyor- 
general,  shall  each,  at  stated  times  during  their  continuance 
in  office,  receive  for  their  services  a  compensation,  which 
shall  not  be  increased  or  diminished  during  the  term  for 
which  they  shall  have  been  elected;  but  neither  of  these 
officers  shall  receive  for  his  own  use  any  fees  for  the  per- 
formance of  his  official  duties. 

ARTICLE  VI. 

[Before  it  was  revised  by  amendments  ratified  September 
3,  1862.     For  revision,  see  page  670.] 

JUDICIAL  DEPARTMENT. 

Section  1.  The  judicial  power  of  this  state  shall  be 
vested  in  a  supreme  court,  in  district  courts,  in  county 
courts  and  in  justices  of  the  peace.  The  legislature  may 
also  establish  such  municipal  and  other  inferior  courts  as 
may  be  deemed  necessary. 

Sec.  2.  The  supreme  court  shall  consist  of  a  chief  justice 
and  tAvo  associate  justices,  any  two  of  whom  shall  constitute 
a  quorum. 

Sec.  3.  The  justices  of  the  supreme  court  shall  be  elected 
at  the  general  election,  by  the  qualified  electors  of  the  state, 
and  shall  hold  their  office  for  the  term  of  six  years  from  the 
first  day  of  January,  next  after  their  election;  provided, 
that  the  legislature  shall,  at  its  first  meeting,  elect  a  chief 
justice  and  two  associate  justices  of  the  supreme  court,  by 
joint  vote  of  both  houses,  and  so  classify  them  that  one  shall 
go  out  of  office  every  two  years.  After  the  first  election, 
the  senior  justice  in  commission  shall  be  the  chief  justice. 

Sec.  4.  The  supreme  court  shall  have  appellate  jurisdic- 
tion in  all  cases  when  the  matter  in  dispute  exceeds  two 
hundred  dollars,  when  the  legality  of  any  tax,  toll,  or  im- 
post, or  municipal  fine  is  in  question,  and  in-  all  criminal 
cases  amounting  to  felony,  on  questions  of  law  alone.     And 


Art.  VI,  §§  5-8  CONSTITUTION  OF  1849.  668 

the  said  court,  and  each  of  the  justices  thereof,  as  well  as 
all  district  and  county  judges,  shall  have  power  to  issue 
writs  of  habeas  corpus  at  the  instance  of  any  person  held 
in  actual  custody.  They  shall  also  have  power  to  issue  all 
other  writs  and  process  necessary  to  the  exercise  of  their 
appellate  jurisdiction  and  shall  be  conservators  of  the  peace 
throughout  the  state. 

Sec.  5.  The  state  shall  be  divided  by  the  first  legisla- 
ture into  a  convenient  number  of  districts,  subject  to  such 
alteration  from  time  to  time  as  the  public  good  may  require, 
for  each  of  which  a  district  judge  shall  be  appointed  by  the 
joint  vote  of  the  legislature,  at  its  first  meeting,  who  shall 
hold  his  office  for  two  years  from  the  first  day  of  January 
next  after  his  election ;  after  which  said  judges  shall  be 
elected  by  the  qualified  electors  of  their  respective  districts, 
at  the  general  election,  and  shall  hold  their  office  for  the 
term  of  six  years. 

Sec.  6.  The  district  courts  shall  have  original  jurisdic- 
tion, in  law  and  equity,  in  all  civil  cases  where  the  amount 
in  dispute  exceeds  two  hundred  dollars,  exclusive  of  inter- 
est. In  all  criminal  cases  not  otherwise  provided  for,  and 
in  all  issues  of  fact  joined  in  the  probate  courts,  their  juris- 
diction shall  be  unlimited. 

Sec.  7.  The  legislature  shall  provide  for  the  election,  by 
the  people,  of  a  clerk  of  the  supreme  court,  and  county 
clerks,  district  attorneys,  sheriffs,  coroners  and  other  neces- 
sary officers ;  and  shall  fix  by  law  their  duties  and  compen- 
sation. County  clerks  shall  be  ex-officio  clerks  of  the  dis- 
trict courts  in  and  for  their  respective  counties. 

Sec.  8.  There  shall  be  elected  in  each  of  the  organized 
counties  of  this  state  one  county  judge,  who  shall  hold  his 
office  for  four  years.  He  shall  hold  the  county  court  and 
perform  the  duties  of  surrogate  or  probate  judge.  The 
county  judge,  with  two  justices  of  the  peace,  to  be  desig- 
nated according  to  law,  shall  hold  courts  of  sessions,  with 
such  criminal  jurisdiction  as  the  legislature  shall  prescribe, 
and  he  shall  perform  such  other  duties  as  shall  be  required 
by  law. 


I 


669  JUDICIAL    DEPARTMENT.         Art.  VI,  §  §  9-17 

Sec.  9.  The  county  courts  shall  have  such  jurisdiction, 
in  cases  arising  in  justices'  courts,  and  in  special  cases,  as 
the  legislature  may  prescribe,  but  shall  have  no  original 
civil  jurisdiction,  except  in  such  special  cases. 

Sec.  10.  The  times  and  places  of  holding  the  terms  of  the 
supreme  court,  and  the  general  and  special  terms  of  the 
district  courts  within  the  several  districts,  shall  be  provided 
for  by  law. 

Sec.  11.  No  judicial  officer,  except  a  justice  of  the  peace, 
shall  receive  to  his  own  use,  any  fees  or  perquisites  of  office. 

Sec.  12.  The  legislature  shall  provide  for  the  speedy 
publication  of  all  statute  laws,  and  of  such  judicial  deci- 
sions as  it  may  deem  expedient ;  and  all  laws  and  judicial 
decisions  shall  be  free  for  publication  by  any  person. 

Sec.  13.  Tribunals  for  conciliation  may  be  established 
with  such  powers  and  duties  as  may  be  prescribed  by  law; 
but  such  tribunals  shall  have  no  power  to  render  judgment 
to  be  obligatory  on  the  parties,  except  they  voluntarily  sub- 
mit their  matters  in  difference,  and  agree  to  abide  the  judg- 
ment, or  assent  thereto  in  the  presence  of  such  tribunal,  in 
such  cases  as  shall  be  prescribed  by  law. 

Sec.  14.  The  legislature  shall  determine  the  number  of 
justices  of  the  peace  to  be  elected  in  each  county,  city,  town, 
and  incorporated  village  of  the  state,  and  fix  by  law  their 
powers,  duties  and  responsibilities.  It  shall  also  determine 
in  what  cases  appeals  may  be  made  from  justices'  courts  to 
the  county  court. 

Sec.  15.  The  justices  of  the  supreme  court  and  judges  of 
the  district  courts  shall  severally,  at  stated  times  during 
their  continuance  in  office,  receive  for  their  services  a  com- 
pensation to  be  paid  out  of  the  treasury. 

Sec.  16.  The  justices  of  the  supreme  court  and  district 
judges  shall  be  ineligible  to  any  other  office  during  the  term 
for  which  they  shall  have  been  elected. 

Sec.  17.  Judges  shall  not  charge  juries  with  respect  to 
matters  of  fact,  but  may  state  the  testimony  and  declare  the 
law. 


Art.  VI,  §§  1-4         CONSTITUTION  OF  1849. 


G70 


ARTICLE  VI. 

[As  revised  by  amendments  ratified  September  3,  1862.] 
JUDICIAL  DEPAETMENT. 

Section  1.  The  judicial  power  of  this  state  shall  be 
vested  in  a  supreme  court,  in  districts  courts,  in  county 
courts,  in  probate  courts,  and  in  justices  of  the  peace,  and 
in  such  recorder's  and  other  inferior  courts  as  the  legisla- 
ture may  establish  in  any  incorporated  city  or  town.    (1862.) 

Sec.  2.  The  supreme  court  shall  consist  of  a  chief  jus- 
tice and  four  associate  justices.  The  presence  of  three  jus- 
tices shall  be  necessary  for  the  transaction  of  business,  ex- 
cepting such  business  as  may  be  done  at  chambers,  and  the 
concurrence  of  three  justices  shall  be  necessary  to  pro- 
nounce a  judgment.     (1862.) 

Sec.  3.  The  justices  of  the  supreme  court  shall  be  elected 
by  the  qualified  electors  of  the  state  at  special  elections  to 
be  provided  by  law,  at  which  elections  no  officer  other  than 
judicial  shall  be  elected,  except  a  superintendent  of  public 
instruction.  The  first  election  for  justices  of  the  supreme 
court  shall  be  held  in  the  year  eighteen  hundred  and  sixty- 
three.  The  justices  shall  hold  their  offices  for  the  term  of 
ten  years  from  the  first  day  of  January  next  after  their 
election,  except  those  elected  at  the  first  election,  who,  at 
their  first  meeting,  shall  so  classify  themselves  by  lot  that 
one  justice  shall  go  out  of  office  every  two  years.  The  jus- 
tice having  the  shortest  term  to  serve  shall  be  the  chief  jus- 
tice.    (1862.) 

Sec.  4.  The  supreme  court  shall  have  appellate  jurisdic- 
tion in  all  cases  in  equity ;  also  in  all  cases  at  law  which  in- 
volve the  title  or  possession  of  real  estate,  or  the  legality 
of  any  tax,  impost,  assessment,  toll,  or  municipal  fi.ne,  or  in 
which  the  demand,  exclusive  of  interest  or  the  value  of  the 
property  in  controversy,  amounts  to  three  hundred  dollars  ; 
also  in  all  cases  arising  in  the  probate  courts ;  and  also  in  all 
criminal  cases  amounting  to  felony,  on  questions  of  law 
alone.  The  court  shall  also  have  power  to  issue  Avrits  of 
mandamus,  certiorari,  prohibition,  and  habeas  corpus,  and 


671  JUDICIAL   DEPARTMENT.  Art.  VI,  §§  5-7 

also  all  writs  necessary  or  proper  to  the  complete  exercise 
of  its  appellate  jurisdiction.  Each  of  the  justices  shall  have 
power  to  issue  writs  of  habeas  corpus  to  any  part  of  the 
state,  upon  petition  on  behalf  of  any  person  held  in  actual 
custody,  and  make  such  writs  returnable  before  himself,  or 
the  supreme  court,  or  before  any  district  court,  or  any 
county  court  in  the  state,  or  before  any  judge  of  said  courts. 
(1862.) 

Sec.  5.  The  state  shall  be  divided,  by  the  legislature  of 
eighteen  hundred  and  sixty-three,  into  fourteen  judicial  dis- 
tricts, subject  to  such  alteration,  from  time  to  time,  by  a 
two-thirds  vote  of  all  the  members  elected  to  both  houses, 
as  the  public  good  may  require,  in  each  of  which  there  shall 
be  a  district  court,  and  for  each  of  which  a  judge  shall  be 
elected  by  the  qualified  electors  of  the  district  at  the  special 
judicial  elections  to  be  held  as  provided  for  the  election  of 
justices  of  the  supreme  court,  by  section  three  of  this  article. 
The  district  judges  shall  hold  their  offices  for  the  term  of  six 
years  from  the  first  day  of  January  next  after  their  election. 
The  legislature  shall  have  no  power  to  grant  leave  of  ab- 
sence to  a  judicial  officer ;  and  any  such  officer  who  shall 
absent  himself  from  the  state  for  upward  of  thirty  consecu- 
tive days  shall  be  deemed  to  have  forfeited  his  office. 
(1862.) 

Sec.  6.  The  district  courts  shall  have  original  jurisdic- 
tion in  all  cases  in  equity ;  also,  in  all  cases  at  law  which 
involve  the  title  or  possession  of  real  property,  or  the  legal- 
ity of  any  tax,  impost,  assessment,  toll,  or  municipal  fine, 
and  in  all  other  cases  in  which  the  demand,  exclusive  of  in- 
terest or  the  value  of  the  property  in  controversy,  amounts 
to  three  hundred  dollars ;  and  also  in  all  criminal  cases  not 
otherwise  provided  for.  The  district  courts  and  their  judges 
shall  have  power  to  issue  writs  of  habeas  corpus,  on  peti- 
tion by  or  on  behalf  of  any  person  held  in  actual  custody, 
in  their  respective  districts.      (1862.) 

Sec.  7.  There  shall  be  in  each  of  the  organized  counties 
of  the  state  a  county  court,  for  each  of  which  a  county 
judge  shall  be  elected  by  the  qualified  electors  of  the  county, 


Art.  VI,  §§  8-10       CONSTITUTION  OF  1849.  672 

at  the  special  judicial  election  to  be  held  as  provided  for  the 
election  of  justices  of  the  supreme  court  by  section  three  of 
this  article.  The  county  judges  shall  hold  their  offices  for 
the  term  of  four  years  from  the  first  day  of  January  next 
after  their  election.  Said  courts  shall  also  have  power  to 
issue  naturalization  papers.  In  the  city  and  county  of  San 
Francisco  the  legislature  may  separate  the  office  of  probate 
judge  from  that  of  county  judge,  and  may  provide  for  the 
election  of  a  probate  judge,  who  shall  hold  his  office  for  the 
term  of  four  years.     (1862.) 

Sec.  8.  The  county  court  shall  have  original  jurisdiction 
of  actions  of  forcible  entry  and  detainer,  of  proceedings  in 
insolvency,  of  actions  to  prevent  or  abate  a  nuisance,  and  of 
all  such  special  cases  and  proceedings  as  are  not  otherwise 
provided  for;  and  also  such  criminal  jurisdiction  as  the 
legislature  may  prescribe;  they  shall  also  have  appellate 
jurisdiction  in  all  cases  arising  in  courts  held  by  justices 
of  the  peace  and  recorders,  and  in  such  inferior  courts  as 
may  be  established  in  pursuance  of  section  one  of  this 
article,  in  their  respective  counties.  The  county  judges 
shall  also  hold,  in  their  several  counties,  probate  court,  and 
perform  such  duties  as  probate  judges  as  may  be  prescribed 
by  law.  The  county  courts  and  their  judges  shall  also  have 
power  to  issue  writs  of  habeas  corpus,  on  petition  by  or  on 
behalf  of  any  person  in  actual  custody  in  their  respective 
counties.     (1862.) 

Sec.  9.  The  legislature  shall  determine  the  number  of 
justices  of  the  peace  to  be  elected  in  each  city  and  township 
of  the  state,  and  fix  by  law  their  powers,  duties,  and  respon- 
sibilities ;  provided,  such  powers  shall  not  in  any  case  trench 
upon  the  jurisdiction  of  the  several  courts  of  record.  The 
supreme  court,  the  district  courts,  county  courts,  the  pro- 
bate courts,  and  such  other  courts  as  the  legislature  shall 
prescribe,  shall  be  courts  of  record.     (1862.) 

Sec.  10.  The  legislature  shall  fix  by  law  the  jurisdiction 
of  any  recorder's  or  other  inferior  municipal  court  which 
may  be  established  in  pursuance  of  section  one  of  this  arti- 
cle, and  shall  fix  by  law  the  powers,  duties,  and  responsi- 
bilities of  the  judges  thereof.     (1862.) 


\ 


673  JUDICIAL  DEPARTMENT.         Art.  VI,  §§  11-17 

Sec.  11.  The  legislature  shall  provide  for  the  election  of 
a  clerk  of  the  supreme  court,  county  clerks,  district  attor- 
neys, sheriffs,  and  other  necessary  officers,  and  shall  fix  by 
law  their  duties  and  compensation.  County  clerks  shall  be 
ex-officio  clerks  of  the  courts  of  record  in  and  for  their  re- 
spective counties.  The  legislature  may  also  provide  for  the 
appointment  by  the  several  district  courts  of  one  or  more 
commissioners  in  the  several  counties  of  their  respective  dis- 
tricts, with  authority  to  perform  chamber  business  of  the 
judges  of  the  district  courts  and  county  courts,  and  also  to 
take  depositions,  and  to  perform  such  other  business  con- 
nected with  the  adminstration  of  justice  as  may  be  pre- 
scribed by  law.     (1862.) 

Sec.  12.  The  times  and  places  of  holding  the  terms  of  the 
several  courts  of  record  shall  be  provided  for  by  law. 
(1862.) 

Sec.  13.  No  judicial  officer,  except  justices  of  the  peace, 
recorders,  and  comimssioners  shall  receive  to  his  own  use 
any  fees  or  perquisites  of  office.     (1862.) 

Sec.  14.  The  legislature  shall  provide  for  the  speedy  pub- 
lication of  such  opinions  of  the  supreme  court  as  it  may 
deem  expedient ;  and  all  opinions  shall  be  free  for  publica- 
tion by  any  person.     (1862.) 

Sec.  15.  The  justices  of  the  supreme  court,  district 
judges,  and  county  judges,  shall  severally,  at  stated  times 
during  their  continuance  in  office,  receive  for  their  services 
a  compensation,  which  shall  not  be  increased  or  diminished, 
during  the  term  for  which  they  shall  have  been  elected ; 
provided,  that  county  judges  shall  be  paid  out  of  the  county 
treasury  of  their  respective  counties.     (1862.) 

Sec.  16.  The  justices  of  the  supreme  court,  and  the  dis- 
trict judges,  and  the  county  judges,  shall  be  ineligible  to 
any  other  office  than  a  judicial  office  during  the  term  for 
which  they  shall  have  been  elected.     (1862.) 

Sec.  17.  Judges  shall  not  charge  juries  with  respect  to 
matters  of  fact,  but  may  state  the  testimony  and  declare  the 
law.     (1862.) 

Constitution — 43 


Art.  VIII,  §  1 


CONSTITUTION  OF  1849. 


674 


Sec.  18.  The  style  of  all  process  shall  be :  "The  People  of 
the  State  of  California,"  and  all  prosecutions  shall  be  con- 
ducted in  their  name  and  by  their  authority.     (1862.) 

Sec.  19.  In  order  that  no  inconvenience  may  result  to  the 
public  service  from  the  taking  effect  of  the  amendments 
proposed  to  said  article  VI,  by  the  legislature  of  eighteen 
hundred  and  sixty-one,  no  officer  shall  be  superseded  there- 
by, nor  shall  the  organization  of  the  several  courts  be 
changed  thereby,  until  the  election  and  qualification  of  the 
several  officers  provided  for  in  said  amendment.     (1862.) 

ARTICLE  VII. 

MILITIA. 

Section  1.  The  legislature  shall  provide  by  law  for  or- 
ganizing and  disciplining  the  militia,  in  such  manner  as  they 
shall  deem  expedient,  not  incompatible  with  the  Constitu- 
tion and  laws  of  the  United  States. 

Sec.  2.  Officers  of  the  militia  shall  be  elected  or  ap- 
pointed in  such  manner  as  the  legislature  shall  from  time  to 
time  direct,  and  shall  be  commissioned  by  the  governor. 

Sec.  3.  The  governor  shall  have  power  to  call  forth  the 
militia  to  execute  the  laws  of  the  state,  to  suppress  insurrec- 
tions, and  repel  invasions. 


ARTICLE  VIII. 

STATE  DEBTS. 
Section  1.  The  legislature  shall  not  in  any  manner  create 
any  debt  or  debts,  liability  or  liabilities,  which  shall,  singly 
or  in  the  aggregate  with  any  previous  debts  or  liabilities, 
exceed  the  sum  of  three  hundred  thousand  dollars,  except 
in  case  of  war,  to  repel  invasion,  or  suppress  insurrection, 
unless  the  same  shall  be  authorized  by  some  law  for  some 
single  object  or  work,  to  be  distinctly  specified  therein, 
which  law  shall  provide  ways  and  means,  exclusive  of  loans, 
for  the  payment  of  the  interest  of  such  debt  or  liability  as 
it  falls  due,  and  also  to  pay  and  discharge  the  principal  of 
such  debt  or  liability  within  twenty  years  from  the  time  of 


675  EDUCATION.  Art.  IX,  §§  1, 2 

the  contracting  thereof,  and  shall  be  irrepealable  until  the 
principal  and  interest  thereon  shall  be  paid  and  discharged; 
but  no  such  law  shall  take  effect  until,  at  a  general  election, 
it  shall  have  been  submitted  to  the  people  and  have  received 
a  majority  of  all  the  votes  cast  for  and  against  it  at  such 
election ;  and  all  money  raised  by  authority  of  such  law  shall 
be  applied  only  to  the  specific  object  therein  stated,  or  to 
the  payment  of  the  debt  thereby  created ;  and  such  law  shall 
be  published  in  at  least  one  newspaper  in  each  judicial  dis- 
trict, if  one  be  published  therein,  throughout  the  state,  for 
three  months  next  preceding  the  election  at  which  it  is  sub- 
mitted to  the  people. 

ARTICLE  IX. 

EDUCATION. 

Section  1.  A  superintendent  of  public  instruction  shall, 
at  the  special  election  for  judicial  officers  to  be  held  in  the 
year  eighteen  hundred  and  sixty-three,  and  every  four  years 
thereafter,  at  such  special  elections,  be  elected  by  the  quali- 
fied voters  of  the  state,  and  shall  enter  upon  the  duties  of 
his  office  on  the  first  day  of  December  next  after  his  elec- 
tion. (Amendment  ratified  September  3',  1862.  Original 
provided  for  term  of  three  years  and  election  at  the  general 
election.) 

Sec.  2.  The  legislature  shall  encourage,  by  all  suitable 
means,  the  promotion  of  intellectual,  scientific,  moral,  and 
agricultural  improvement.  The  proceeds  of  all  lands  that 
may  be  granted  by  the  United  States  to  this  state  for  the 
support  of  schools,  which  may  be  sold  or  disposed  of,  and 
the  five  hundred  thousand  acres  of  land  granted  to  the  new 
states,  under  an  act  of  Congress  distributing  the  proceeds 
of  the  public  lands  among  the  several  states  of  the  Union, 
approved  A.  D.  one  thousand  eight  hundred  and  forty-one, 
and  all  estates  of  deceased  persons  who  may  have  died  with- 
out leaving  a  will  or  heir,  and  also  such  per  cent  as  may  be 
granted  by  Congress  on  the  sale  of  lands  in  this  state,  shall 
be  and  remain  a  perpetual  fund,  the  interest  of  which,  to- 
gether with  all  the  rents  of  the  unsold  lands,  and  such  other 
means  as  the  legislature  may  provide,  shall  be  inviolably. 


Art.  X,  §  1 


CONSTITUTION  OF  1849. 


G76 


appropriated  to  the  support  of  common  schools  throughout 
the  state. 

Sec.  3.  The  legislature  shall  provide  for  a  system  of  com- 
mon schools,  by  which  a  school  shall  be  kept  up  and  sup- 
ported in  each  district  at  least  three  months  in  every  year ; 
and  any  school  district  neglecting  to  keep  up  and  support 
such  a  school  may  be  deprived  of  its  proportion  of  the  in- 
terest of  the  public  fund  during  such  neglect. 

Sec.  4.  The  legislature  shall  take  measures  for  the  pro- 
tection, improvement,  or  other  disposition  of  such  lands  as 
have  been  or  may  hereafter  be  reserved  or  granted  by  the 
United  States,  or  any  person  or  persons,  to  this  state,  for 
the  use  of  a  university;  and  the  funds  accruing  from  the 
rents  or  sale  of  such  lands,  or  from  any  other  source,  for 
the  purpose  aforesaid,  shall  be  and  remain  a  permanent 
fund,  the  interest  of  which  shall  be  applied  to  the  support 
of  said  university,  with  such  branches  as  the  public  conveni- 
ence may  demand,  for  the  promotion  of  literature,  the  arts 
and  sciences,  as  may  be  authorized  by  the  terms  of  such 
grant.  And  it  shall  be  the  duty  of  the  legislature,  as  soon 
as  may  be,  to  provide  effectual  means  for  the  improvement 
and  permanent  security  of  the  funds  of  said  university. 


ARTICLE  X. 
MODE  OF  AMENDING  AND  REVISING  THE  CONSTITUTION. 
Section  1.  Any  amendment  or  amendments  to  this  Con- 
stitution may  be  proposed  in  the  senate  or  assembly ;  and  if 
the  same  shall  be  agreed  to  by  a  majority  of  the  members 
elected  to  each  of  the  two  houses,  such  proposed  amendment 
or  amendments  shall  be  entered  on  their  journals,  with  the 
yeas  and  nays  taken  thereon,  and  referred  to  the  legislature 
then  next  to  be  chosen,  and  shall  be  published  for  three 
months  next  preceding  the  time  of  making  such  choice. 
And  if,  in  the  legislature  next  chosen  as  aforesaid,  such  pro- 
posed amendment  or  amendments  shall  be  agreed  to  by  a 
majority  of  all  the  members  elected  to  each  house,  then  it 
shall  be  the  duty  of  the  legislature  to  submit  such  proposed 
amendment  or  amendments  to  the  people,  in  such  manner 


677  MISCELLANEOUS   PROVISIONS.  Art.  XI,  §  1 

and  at  such  time  as  the  legislature  shall  prescribe ;  and  if 
the  people  shall  approve  and  ratify  such  amendment  or 
amendments,  by  a  majority  of  the  electors  qualified  to  vote 
for  members  of  the  legislature  voting  thereon,  such  amend- 
ment or  amendments  shall  become  part  of  the  Constitution. 
Sec.  2.  And  if  at  any  time  two-thirds  of  the  senate  and 
assembly  shall  think  it  necessary  to  revise  and  change  this 
entire  Constitution,  they  shall  recommend  to  the  electors 
at  the  next  election  for  members  of  the  legislature  to  vote 
for  or  against  a  convention;  and  if  it  shall  appear  that  a 
majority  of  the  electors  voting  at  such  election  have  voted 
in  favor  of  calling  a  convention,  the  legislature  shall,  at  its 
next  session,  provide  by  law  for  calling  a  convention,  to  be 
holden  Avithin  six  months  after  the  passage  of  such  law; 
and  such  convention  shall  consist  of  a  number  of  members 
not  less  than  that  of  both  branches  of  the  legislature.  The 
Constitution  that  may  have  been  agreed  upon  and  adopted 
by  such  convention  shall  be  submitted  to  the  people,  at  a 
special  election  to  be  provided  for  by  law,  for  their  ratifica- 
tion or  rejection.  Each  voter  shall  express  his  opinion  by 
depositing  in  the  ballot  box  a  ticket,  whereon  shall  be  writ- 
ten or  printed  the  words  "For  the  new  Constitution,"  or 
"Against  the  new  Constitution."  The  returns  of  such  elec- 
tion shall,  in  such  manner  as  the  convention  shall  direct,  be 
certified  to  the  executive  of  the  state,  who  shall  call  to  his 
assistance  the  controller,  treasurer,  and  secretary  of  state, 
and  compare  the  votes  so  certified  to  him.  If,  by  such  ex- 
amination, it  be  ascertained  that  a  majority  of  the  whole 
number  of  votes  cast  at  such  election  be  in  favor  of  such 
new  Constitution,  the  executive  of  this  state  shall,  by  his 
proclamation,  declare  such  new  Constitution  to  be  the  Con- 
stitution of  the  state  of  California.  (Amendment  ratified 
November  4, 1856.) 

ARTICLE  XI. 

MISCELLANEOUS  PROVISIOXS. 

Section  1.  The  first  session  of  the  legislature  shall  be 
held  at  the  Pueblo  de  San  Jose,  which  place  shall  be  the  per- 
manent sfeat  of  government  until  removed  by  laAV ;  provided, 


Art.  XI,  §§2-7     .    CONSTITUTION  OF  1849.  678 

however,  that  two-thirds  of  all  the  members  elected  to  each 
house  of  the  legislature  shall  concur  in  the  passage  of  such 
law. 

Sec.  2.  Any  citizen  of  this  state  who  shall,  after  the 
adoption  of  this  Constitution,  fight  a  duel  with  deadly 
weapons,  or  send  or  accept  a  challenge  to  fight  a  duel  with 
deadly  weapons,  either  within  this  state  or  out  of  it,  or  who 
shall  act  as  second  or  knowingly  aid  or  assist  in  any  manner 
those  thus  offending,  shall  not  be  allowed  to  hold  any  office 
of  profit  or  to  enjoy  the  right  of  suffrage  under  this  Consti- 
tution. 

Sec.  3.  Members  of  the  legislature  and  all  officers,  execu- 
tive and  judicial,  except  such  inferior  officers  as  may  be  by 
law  exempted,  shall,  before  they  enter  on  the  duties  of  their 
respective  offices,  take  and  subscribe  the  following  oath  or 
affirmation : 

"I  do  solemnly  swear  (or  affirm,  as  the  case  may  be)  that 
I  will  support  the  Constitution  of  the  United  States  and 
the  Constitution  of  the  state  of  California,  and  that  I  will 
faithfully  discharge  the  duties  of  the  office  of ,  accord- 
ing to  the  best  of  my  ability." 

And  no  other  oath,  declaration,  or  test  shall  be  required 
as  a  qualification  for  any  office  or  public  interest. 

Sec.  4.  The  legislature  shall  establish  a  system  of  county 
and  toAvn  governments,  which  shall  be  as  nearly  uniform  as 
practicable  throughout  the  state. 

Sec.  5.  The  legislature  shall  have  the  power  to  provide 
for  the  election  of  a  board  of  supervisors  in  each  county, 
and  these  supervisors  shall  jointly  and  individually  perform 
such  duties  as  may  be  prescribed  by  law. 

Sec.  6.  All  officers  whose  election  or  appointment  is  not 
provided  for  by  this  Constitution,  and  all  officers  whose 
offices  may  hereafter  be  created  by  law,  shall  be  elected  by 
the  people,  or  appointed,  as  the  legislature  may  direct. 

Sec.  7.  When  the  duration  of  any  office  is  not  provided 
for  by  this  Constitution,  it  may  be  declared  by  law;  and  if 
not  so  declared,  such  office  shall  be  held  during  the  pleasure 


I 


679  MISCELLANEOUS  PROVISIONS.      Art.  XI,  §§  8-15 

of  the  authority  making  the  appointment;  nor  shall  the 
duration  of  any  office  not  fixed  by  this  Constitution  ever 
exceed  four  years. 

Sec.  8.  The  fiscal  year  shall  commence  on  the  first  day  of 
July. 

Sec.  9.  Each  county,  town,  city,  and  incorporated  village 
shall  make  provision  for  the  support  of  its  own  officers,  sub- 
ject to  such  restrictions  and  regulations  as  the  legislature 
may  prescribe. 

Sec.  10.  The  credit  of  the  state  shall  not  in  any  manner 
be  given  or  loaned  to  or  in  aid  of  any  individual,  associa- 
tion, or  corporation ;  nor  shall  the  state,  directly  or  indi- 
rectly, become  a  stockholder  in  any  association  or  corpora- 
tion. 

Sec.  11.  Suits  may  be  brought  against  the  state  in  such 
manner  and  in  such  courts  as  shall  be  directed  by  law. 

Sec.  12.  No  contract  of  marriage,  if  otherwise  duly  made, 
shall  be  invalidated  for  want  of  conformity  to  the  require- 
ments of  any  religious  sect. 

Sec.  13.  Taxation  shall  be  equal  and  uniform  throughout 
the  state.  All  property  in  this  state  shall  be  taxed  in  pro- 
portion to  its  value,  to  be  ascertained  as  directed  by  law ; 
but  assessors  and  collectors  of  town,  county,  and  state  taxes 
shall  be  elected  by  the  qualified  electors  of  the  district, 
county,  or  town  in  which  the  property  taxed  for  state, 
county,  or  town  purposes  is  situated. 

Sec.  14.  All  property,  both  real  and  personal,  of  the 
wife,  OAvned  or  claimed  by  her  before  marriage,  and  that 
acquired  afterward  by  gift,  devise,  or  descent,  shall  be  her 
separate  property,  and  laws  shall  be  passed  more  clearly 
defining  the  rights  of  the  wife  in  relation  as  Avell  to  her 
separate  property  as  to  that  held  in  common  with  her  hus- 
band. Laws  shall  also  be  passed  providing  for  the  registra- 
tion of  the  wife's  separate  property. 

Sec.  15.  The  legislature  shall  protect  by  law  from  forced 
sale  a  certain  portion  of  the  homestead  and  other  property 
of  all  heads  of  families. 


Art.  XII,  §  1 


CONSTITUTION  OF  1849. 


680 


Sec.  16.  No  perpetuities  shall  be  allowed  except  for  elee- 
mosynary purposes. 

Sec.  17.  Every  person  shall  be  disqualified  from  holding 
any  office  of  profit  in  this  state  who  shall  have  been  con- 
victed of  having  been  given  or  offered  a  bribe  to  procure  his 
election  or  appointment. 

Sec.  18.  Laws  shall  be  made  to  exclude  from  office,  serv- 
ing on  juries  and  from  the  right  of  suffrage,  those  who  shall 
hereafter  be  convicted  of  bribery,  perjury,  forgery,  or  other 
high  crimes.  The  privilege  of  free  suffrage  shall  be  sup- 
ported by  laws  regulating  elections,  and  prohibiting,  under 
adequate  penalties  all  undue  influence  thereon  from  power, 
bribery,  tumult,  or  other  improper  practice. 

Sec.  19.  Absence  from  this  state  on  business  of  the  state 
or  of  the  United  States  shall  not  affect  the  question  of  resi- 
dence of  any  person. 

Sec.  20.  A  plurality  of  the  votes  given  at  any  election 
shall  constitute  a  choice,  where  not  otherwise  directed  in 
this  Constitution. 

Sec.  21.  All  laws,  decrees,  regulations,  and  provisions 
which  from  their  nature  require  publication  shall  be  pub- 
lished in  English  and  Spanish. 


ARTICLE  XIL 

BOUNDAEY. 

Section  1.  The  boundary  of  the  state  of  California  shall 
be  as  follows : 

Commencing  at  the  point  of  intersection  of  forty-second 
degree  of  north  latitude  with  the  one  hundred  twentieth 
degree  of  longitude  w^est  from  Greenwich,  and  running 
south  on  the  line  of  said  one  hundred  twentieth  degree  of 
west  longitude  until  it  intersects  the  thirty-ninth  degree  of 
north  latitude ;  thence  running  in  a  straight  line  in  a  south- 
easterly direction  to  the  River  Colorado,  at  a  point  where  it 
intersects  the  thirty-fifth  degree  of  north  latitude ;  thence 
down  the  middle  of  the  channel  of  said  river  to  the  bound- 
ary line  betw^een  the  United  States  and  Mexico,  as  estab- 


681  SCHEDULE.  §§  1-6 

lished  by  the  treaty  of  May  thirtieth,  one  thousand  eight 
hundred  and  forty-eight ;  thence  running  west  and  along 
said  boundary  line,  to  the  Pacific  Ocean,  and  extending 
therein  three  English  miles ;  thence,  running  in  a  northAvest- 
erly  direction  and  following  the  direction  of  the  Pacific 
Coast,  to  the  forty-second  degree  of  north  latitude ;  thence, 
on  the  line  of  said  forty-second  degree  of  north  latitude,  to 
the  place  of  beginning.  Also  all  the  islands,  harbors,  and 
bays  along  and  adjacent  to  the  coast. 

SCHEDULE. 

Section  1.  All  rights,  prosecutions,  claims,  and  contracts, 
as  well  of  individuals  as  of  bodies  corporate,  and  all  laws 
in  force  at  the  time  of  the  adoption  of  this  Constitution  and 
not  inconsistent  therewith,  until  altered  or  repealed  by  the 
legislature,  shall  continue  as  if  the  same  had  not  been 
adopted. 

Sec.  2.  The  legislature  shall  provide  for  the  removal  of 
all  causes  which  may  be  pending  when  this  Constitution 
goes  into  effect  to  courts  created  by  the  same. 

Sec.  3.  In  order  that  no  inconvenience  may  result  to  the 
public  service  from  the  taking  effect  of  this  Constitution,  no 
office  shall  be  superseded  thereby  nor  the  laws  relative  to 
the 'duties  of  the  several  officers  be  changed  until  the  enter- 
ing into  office  of  the  new  officers  to  be  appointed  under  this 
Constitution. 

Sec.  "4.  The  provisions  of  this  Constitution  concerning 
the  term  of  residence  necessary  to  enable  persons  to  hold 
certain  offices  therein  mentioned,  shall  not  be  held  to  apply 
to  officers  chosen  by  the  people  at  the  first  election,  or  by  the 
legislature  at  its  first  session. 

Sec.  5.  Every  citizen  of  California  declared  a  legal  voter 
by  this  Constitution,  and  every  citizen  of  the  United  States 
a  resident  of  this-  state  on  the  day  of  election,  shall  be  en- 
titled to  vote  at  the  first  general  election  under  this  Consti- 
tution, and  on  the  question  of  the  adoption  thereof. 

Sec.  6.  This  Constitution  shall  be  submitted  to  the  people 
for  their  ratification  or  rejection  at  the  general  election  to 


6 


CONSTITUTION   OF   1849. 


682 


be  held  on  Tuesday,  the  thirteenth  day  of  November  next. 
The  executive  of  the  existing  government  of  California  is 
hereby  requested  to  issue  a  proclamation  to  the  people,  di- 
recting the  prefects  of  the  several  districts,  or,  in  case  of 
vacancy,  the  subprefeets  or  senior  judge  of  first  instance,  to 
cause  such  election  to  be  held  on  the  day  aforesaid  in  their 
respective  districts.  The  election  shall  be  conducted  in  the 
manner  which  was  prescribed  for  the  election  of  delegates 
to  this  convention,  except  that  the  prefects,  subprefeets,  or 
senior  judge  of  first  instance  ordering  such  election  in  each 
district  shall  have  power  to  designate  any  additional  num- 
ber of  places  for  opening  the  polls,  and  that  in  every  place 
of  holding  the  election  a  regular  poll  list  shall  be  kept  by 
the  judges  and  inspectors  of  election.  It  shall  also  be  the 
duty  of  these  judges  and  inspectors  of  election,  on  the  day 
aforesaid,  to  receive  the  votes  of  the  electors  qualified  to 
vote  at  such  election.  Each  voter  shall  express  his  opinion 
by  depositing  in  the  ballot-box  a  ticket  whereon  shall  be 
written  or  printed  "For  the  Constitution,"  or  "Against  the 
Constitution,"  or  some  such  words  as  will  distinctly  convey 
the  intention  of  the  voter.  These  judges  and  inspectors 
shall  also  receive  the  votes  for  the  several  officers  to  be 
voted  for  at  the  said  general  election,  as  herein  provided. 
At  the  close  of  the  election  the  judges  and  inspectors  shall 
carefully  count  each  ballot,  and  forthwith  make  duplicate 
returns  thereof  to  the  prefect,  subprefect  or  senior  judge  of 
first  instance,  as  the  case  may  be,  of  their  respective  dis- 
tricts; and  said  prefect,  subprefect,  or  senior  judge  of  first 
instance  shall  transmit  one  of  the  same,  by  the  most  safe 
and  rapid  conveyance,  to  the  secretary  of  state.  Upon  the 
receipt  of  said  returns,  or  on  the  tenth  day  of  December 
next,  if  the  returns  be  not  sooner  received,  it  shall  be  the 
duty  of  a  board  of  canvassers,  to  consist  of  the  secretary  of 
state,  one  of  the  judges  of  the  superior  court,  the  prefect, 
judge  of  first  instance,  and  an  alcalde  of  the  district  of 
Monterey,  or  any  three  of  the  aforementioned  officers,  in 
the  presence  of  all  who  shall  choose  to  attend,  to  compare 
the  votes  given  at  said  election,  and  to  immediately  publish 
an  abstract  of  the  same  in  one  or  more  of  the  newspapers  of 


683  SCHEDULE.  §§  7-12 

California.  And  the  executive  will  also,  immediately  after 
ascertaining  that  the  Constitution  has  been  ratified  by  the 
people,  make  proclamation  of  the  fact;  and  thenceforth 
this  Constitution  shall  be  ordained  and  established  as  the 
Constitution  of  California. 

Sec.  7.  If  this  Constitution  shall  be  ratified  by  the  people 
of  California,  the  executive  of  the  existing  government  is 
hereby  requested,  immediately  after  the  same  shall  be  ascer- 
tained, in  the  manner  herein  directed,  to  cause  a  fair  copy 
thereof  to  be  forwarded  to  the  President  of  the  United 
States,  in  order  that  he  may  lay  it. before  the  Congress  of 
the  United  States. 

Sec.  8.  At  the  general  election  aforesaid,  viz. :  the  thir- 
teenth day  of  November  next,  there  shall  be  elected  a  gov- 
ernor, lieutenant-governor,  members  of  the  legislature,  and 
also  two  members  of  Congress. 

Sec.  9.  If  this  Constitution  shall  be  ratified  by  the  people 
of  California,  the  legislature  shall  assemble  at  the  seat  of 
government  on  the  fifteenth  day  of  December  next;  and  in 
order  to  complete  the  organization  of  that  body  the  senate 
shall  elect  a  president  pro  tempore,  until  the  lieutenant-gov- 
ernor shall  be  installed  into  office. 

Sec.  10.  On  the  organization  of  the  legislature,  it  shall 
be  the  duty  of  the  secretary  of  state  to  lay  before  each 
house  a  copy  of  the  abstract  made  by  the  board  of  can- 
vassers, and,  if  called  for,  the  original  returns  of  election, 
in  order  that  each  house  may  judge  of  the  correctness  of  the 
report  of  said  board  of  canvassers. 

Sec.  11.  The  legislature,  at  its  first  session,  shall  elect 
such  officers  as  may  be  ordered  by  this  Constitution  to  be 
elected  by  that  body,  and  within  four  days  after  its  organi- 
zation, proceed  to  elect  two  senators  to  the  Congress  of  the 
United  States.  But  no  laAv  passed  by  this  legislature  shall 
take  effect  until  signed  by  the  governor  after  his  installa- 
tion into  office. 

Sec.  12.  The  senators  and  representatives  of  the  Con- 
gress of  the  United  States  elected  by  the  legislature  and 
people  of  California,  as  herein  directed,  shall  be  furnished 


13-15 


CONSTITUTION  OF  1849. 


684 


with  certified  copies  of  this  Constitution,  when  ratified, 
which  they  shall  lay  before  the  Congress  of  the  United 
States,  requesting,  in  the  name  of  the  people  of  California, 
the  admission  of  the  state  of  California  into  the  American 
Union. 

Sec.  13.  All  officers  of  this  state,  other  than  members  of 
the  legislature,  shall  be  installed  into  office  on  the  fifteenth 
day  of  December  next,  or  as  soon  thereafter  as  practicable. 

Sec.  14.  Until  the  legislature  shall  divide  the  state  into 
counties  and  senatorial  and  assembly  districts,  as  directed 
by  this  Constitution,  the  following  shall  be  the  apportion- 
ment of  the  two  houses  of  the  legislature,  viz. :  The  districts 
of  San  Diego  and  Los  Angeles  shall  jointly  elect  two  sena- 
tors ;  the  districts  of  Santa  Barbara  and  San  Luis  Obispo 
shall  jointly  elect  one  senator;  the  district  of  Monterey,  one 
senator ;  the  district  of  San  Jose,  one  senator ;  the  district  of 
San  Francisco,  two  senators;  the  district  of  Sonoma,  one 
senator ;  the  district  of  Sacramento,  four  senators ;  and  the 
district  of  San  Joaquin,  four  senators.  And  the  district  of 
San  Diego  shall  elect  one  member  of  the  assembly ;  the  dis- 
trict of  Los  Angeles,  two  members  of  assembly ;  the  district 
of  Santa  Barbara,  two  members  of  assembly ;  the  district  of 
San  Luis  Obispo,  one  member  of  assembly;  the  district  of 
Monterey,  two  members  of  assembly ;  the  district  of  San 
Jose,  three  members  of  assembly;  the  district  of  San  Fran- 
cisco, five  members  of  assembly ;  the  district  of  Sonoma,  two 
members  of  assembly ;  the  district  of  Sacramento,  nine  mem- 
bers of  assembly;  the  district  of  San  Joaquin,  nine  members 
of  assembly. 

Sec.  15.  Until  the  legislature  shall  otherwise  direct,  in 
accordance  with  the  provisions  of  this  Constitution,  the 
salary  of  the  governor  shall  be  ten  thousand  dollars  per  an- 
num; and  the  salary  of  the  lieutenant-governor  shall  be 
double  the  pay  of  a  state  senator;  and  the  pay  of  members 
of  the  legislature  shall  be  sixteen  dollars  per  diem  while  in 
attendance,  and  sixteen  dollars  for  every  twenty  miles  trav- 
eled by  the  usual  route  from  their  residences  to  the  place  of 
holding    the    session    of   the   legislature,   and   in  returning 


685 


SCHEDULE. 


§16 


therefrom.  And  the  legislature  shall  fix  the  salaries  of  all 
officers  other  than  those  elected  by  the  people  at  the  first 
election. 

Sec.  16.  The  limitation  of  the  powers  of  the  legislature 
contained  in  article  VIII  of  this  Constitution  shall  not  ex- 
tend to  the  first  legislature  elected  under  the  same,  which 
is  hereby  authorized  to  negotiate  for  such  amount  as  may  be 
necessary  to  pay  the  expenses  of  the  state  government. 

R.  SEMPLE, 
President,  and  Delegate  from  Benicia. 
Wm.  G.  Marcy,  Secretary. 


Joseph  Aram, 

Ch.  T.  Botts, 

Elam  Brown, 

Elisha  0.  Crosby, 

Jose  M.  Covarubias, 

Stephen  C.  Foster, 

Wm.  M.  Gwin, 

Edw.  Gilbert, 

Henry  Hill, 

J.  D.  Hoppe, 

Joseph  Hobson, 

Julian  Hanks, 

H.  W.  Halleck, 

L.  W.  Hastings, 

J.  McHenry  Hollinsworth, 

Jas.  McHall  Jones, 

Thomas  0.  Larkin, 

Francis  J.  Lippitt, 

Benj.  S.  Lippincott, 

Benj.  F.  Moore, 

Rodman  M.  Price, 

Jno.  McDougall, 

Man'l  Dominguez, 

Myron  Norton, 


Pablo  De  La  Guerra, 

Lewis  Dent, 

Kimball  H.  Dimmick, 

A.  J.  Ellis, 

Jose  Anto  Carrillo, 

Pacificus  Ord, 

Miguel  D.  Pedrorena, 

M.  M.  McCarver, 

Antonia  Ma.  Pico, 

Jacinto  Rodriguez, 

Hugh  Reid, 

J.  A.  Sutter, 

Jacob  R.  Snyder, 

Winfield  Scott  Sherwood, 

William  E.  Shannon, 

Abel  Stearns, 

P.  Sansevaine, 

Wm.  M.  Steuart, 

Henry  A.  Tefft, 

M.  G.  Vallejo, 

Thos.  L.  Vermeule, 

J.  P.  Walker, 

0.  M.  Wozencraft. 


I 


THE 

CONSTITUTION 


OF   THE 


UNITED  STATES. 

(6<87) 


ij 


CONSTITUTION 

OF  THE 

UNITED  STATES. 


"We  the  People  of  the  United  States,  in  Order  to  form  a 
more  perfect  Union,  establish  Justice,  insure  domestic  Tran- 
quility, provide  for  the  common  defense,  promote  the  general 
Welfare,  and  secure  the  Blessings  of  Liberty  to  ourselves  and 
our  Posterity,  do  ordain  and  establish  this  Constitution  for 
the  United  States  of  America. 

ARTICLE  I. 

Section  1.  All  legislative  Powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  consist 
of  a  Senate  and  House  of  Representatives. 

Section  2.  ^The  House  of  Representatives  shall  be  com- 
posed of  Members  chosen  every  second  Year  by  the  People  of 
the  several  States,  and  the  Electors  in  each  State  shall  have 
the  Qualifications  requisite  for  Electors  of  the  most  numerous 
Branch  of  the  State  Legislature. 

^No  Person  shall  be  a  Representative  who  shall  not  have 
attained  to  the  Age  of  twenty-five  Years,  and  been  seven 
Years  a  Citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  Inhabitant  of  that  State  in  which  he  shall  be 
chosen. 

^[Representatives  and  direct  Taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within  this 
Union,  according  to  their  respective  Numbers,  which  shall  be 
determined  by  adding  to  the  whole  Number  of  free  Persons, 
including  those  bound  to  Service  for  a  Term  of  Years,  and 
excluding  Indians  not  taxed,' three-fifths  of  all  other  Persons.] 
The  actual  Enumeration  shall  be  made  within  three  Years 
after  the  first  Meeting  of  the  Congress  of  the  United  States, 

Constitution — 44  (689) 


Art.  I,  §  3      CONSTITUTION   OF   THE  UNITED   STATES. 


690 


and  within  every  subsequent  Term  of  ten  Years,  in  such  Man- 
ner as  they  shall  by  Law  direct.  The  Number  of  Representa- 
tives shall  not  exceed  one  for  every  thirty  Thousand,  but 
each  State  shall  have  at  Least  one  Representative ;  and  until 
such  enumeration  shall  be  made,  the  State  of  New  Hampshire 
shall  be  entitled  to  chuse  three,  Massachusetts  eight,  Rhode- 
Island  and  Providence  Plantations  one,  Connecticut  five,  New 
York  six,  New  Jersey  four,  Pennsylvania  eight,  Delaware 
one,  Maryland  six,  Virginia  ten.  North  Carolina  five.  South 
Carolina  five,  and  Georgia  three. 

*When  vacancies  happen  in  the  Representation  from  any 
State,  the  Executive  Authority  thereof  shall  issue  Writs  of 
Election  to  fill  such  Vacancies. 

^The  House  of  Representatives  shall  chuse  their  Speaker 
and  other  Officers ;  and  shall  have  the  sole  Power  of  Impeach- 
ment. 

Section  3.  ^The  Senate  of  the  United  States  shall  be  com- 
posed of  two  Senators  from  each  State,  chosen  by  the  Legisla- 
ture thereof,  for  six  Years;  and  each  Senator  shall  have  one 
Vote. 

See  amendment,  Article  XVII,  post. 

^Immediately  after  they  shall  be  assembled  in  Consequence 
of  the  first  Election,  they  shall  be  divided  as  equally  as  may 
be  in  three  Classes.  The  Seats  of  the  Senators  of  the  first 
Class  shall  be  vacated  at  the  Expiration  of  the  second  year,  of 
the  second  Class  at  the  Expiration  of  the  fourth  Year,  and  the 
third  Class  at  the  Expiration  of  the  sixth  Year,  so  that  one- 
third  may  be  chosen  every  second  Year;  and  if  Vacancies 
happen  by  Resignation,  or  otherwise,  during  the  Recess  of  the 
Legislature  of  any  State,  the  Executive  thereof  may  make 
temporary  Appointments  until  the  next  Meeting  of  the  Legis- 
lature, which  shall  then  fill  such  Vacancies. 

^No  Person  shall  be  a  Senator  who  shall  not  have  attained 
to  the  Age  of  thirty  Years,  and  been  nine  Years  a  Citizen  of 
the  United  States,  and  who  shall- not,  when  elected,  be  an  In- 
habitant of  that  State  for  which  he  shall  be  chosen. 

^The  Vice  President  of  the  United  States  shall  be  President 
of  the  Senate,  but  shall  have  no  Vote,  unless  they  be  equally 
divided. 


691  CONSTITUTION   OF   THE   UNITED   STATES.         Art.  I,  §§  4,  5 

^The  Senate  shall  chiise  their  other  Officers,  and  also  a 
President  pro  tempore,  in  the  Absence  of  the  Vice  President, 
or  when  he  shall  exercise  the  Office  of  President  of  the  United 
States. 

®The  Senate  shall  have  the  sole  PoAver  to  try  all  Impeach- 
ments. When  sitting  for  that  Purpose,  they  shall  be  on  Oath 
or  Affirmation.  When  the  President  of  the  United  States  is 
tried,  the  Chief  Justice  shall  preside;  And  no  Person  shall 
be  convicted  without  the  Concurrence  of  two-thirds  of  the 
Members  present. 

^Judgment  in  Cases  of  Impeachment  shall  not  extend  fur- 
ther than  to  removal  from  Office,  and  disqualification  to  hold 
and  enjoy  any  Office  of  honor,  Trust  or  Profit  under  the 
United  States;  but  the  Party  convicted  shall  nevertheless  be 
liable  and  subject  to  Indictment,  Trial,  Judgment  and  Pun- 
ishment, according  to  Law. 

Section  4.  ^The  Times,  Places  and  Manner  of  holding 
Elections  for  Senators  and  Representatives,  shall  be  pre- 
scribed in  each  State  by  the  Legislature  thereof ;  but  the  Con- 
gress may  at  any  time  by  Law  make  or  alter  such  Regulations, 
except  as  to  the  Places  of  chusing  Senators. 

^The  Congress  shall  assemble  at  least  once  in  every  Year, 
and  such  Meeting  shall  be  on  the  first  Monday  in  December, 
unless  they  shall  by  Law  appoint  a  different  Day. 

Section  5.  ^Each  House  shall  be  the  Judge  of  the  Elec- 
tions, Returns  and  Qualifications  of  its  own  Members,  and  a 
Majority  of  each  shall  constitute  a  Quorum  to  do  Business; 
but  a  smaller  Number  may  adjourn  from  day  to  day,  and  may 
be  authorized  to  compel  the  attendance  of  absent  Members,  in 
such  Manner,  and  under  such  Penalties  as  each  House  may 
provide. 

^Eaeh  House  may  determine  the  Rules  of  its  proceedings, 
punish  its  Members  for  disorderly  Behavior,  and,  with  the 
Concurrence  of  two  thirds,  expel  a  Member. 

^Each  House  shall  keep  a  Journal  of  its  Proceedings,  and 
from  time  to  time  publish  the  same,  excepting  such  Parts  as 
may  in  their  Judgment  require  Secrecy;  and  the  Yeas  and 
Nays  of  the  Members  of  either  House  on  any  question  shall, 


Art.  I,  §§  6,  7      CONSTITUTION  OF  THE  UNITED  STATES.  692 

at  the  Desire  of  one  fifth  of  those  present,  be  entered  on  the 
Journal. 

^Neither  House,  during  the  Session  of  Congress,  shall, 
without  the  Consent  of  the  other,  adjourn  for  more  than  three 
days,  nor  to  any  other  Place  than  that  in  which  the  two 
Houses  shall  be  sitting. 

Section  6.  ^The  Senators  and  Representatives  shall  re- 
ceive a  Compensation  for  their  Services,  to  be  ascertained  by 
Law,  and  paid  out  of  the  Treasury  of  the  United  States. 
They  shall  in  all  Cases,  except  Treason,  Felony  and  Breach 
of  the  Peace,  be  privileged  from  Arrest  during  their  Attend- 
ance at  the  Session  of  their  respective  Houses,  and  in  going 
to  and  returning  from  the  same;  and  for  any  Speech  or  De- 
bate in  either  House,  they  shall  not  be  questioned  in  any  other 
Place. 

^No  Senator  or  Representative  shall,  during  the  Time  for 
which  he  was  elected,  be  appointed  to  any  civil  Office  under 
the  Authority  of  the  United  States,  which  shall  have  been 
created,  or  the  Emoluments  whereof  shall  have  been  en- 
creased  during  such  time;  and  no  Person  holding  any  Office 
under  the  United  States,  shall  be  a  Member  of  either  House 
during  his  Continuance  in  Office. 

Section  7.  ^All  Bills  for  raising  Revenue  shall  originate 
in  the  House  of  Representatives ;  but  the  Senate  may  propose 
or  concur  with  Amendments  as  on  other  Bills. 

^Every  Bill  which  shall  have  passed  the  House  of  Repre- 
sentatives and  the  Senate,  shall,  before  it  becomes  a  Law,  be 
presented  to  the  President  of  the  United  States;  If  he  ap- 
prove he  shall  sign  it,  but  if  not  he  shall  return  it,  with  his 
Objections  to  that  House  in  which  it  shall  have  originated, 
who  shall  enter  the  Objections  at  large  on  their  Journal,  and 
proceed  to  reconsider  it.  If  after  such  Reconsideration  two 
thirds  of  that  House  shall  agree  to  pass  the  Bill,  it  shall  be 
sent,  together  with  the  Objections,  to  the  other  House,  by 
which  it  shall  likewise  be  reconsidered,  and  if  approved  by 
two  thirds  of  that  House,  it  shall  become  a  Law.  But  in  all 
such  Cases  the  Votes  of  both  Houses  shall  be  determined  by 
Yeas  and  Nays,  and  the  Names  of  the  Persons  voting  for  and 


693  CONSTITUTION   OF   THE   UNITED    STATES.      Art.  I,  §  8 

against  the  Bill  shall  be  entered  on  the  Journal  of  each  House 
respectively.  If  any  Bill  shall  not  be  returned  by  the  Presi- 
dent within  ten  days  (Sundays  excepted)  after  it  shall  have 
been  presented  to  him,  the  Same  shall  be  a  Law,  in  like  Man- 
ner as  if  he  had  signed  it,  unless  the  Congress  by  their  Ad- 
journment prevent  its  Return,  in  which  case  it  shall  not  be  a 
Law. 

^Every  Order,  Resolution,  or  Vote  to  which  the  Concur- 
rence of  the  Senate  and  House  of  Representatives  may  be 
necessary  (except  on  a  question  of  Adjournment)  shall  be 
presented  to  the  President  of  the  United  States;  and  before 
the  Same  shall  take  Effect,  shall  be  approved  by  him,  or  being 
disapproved  by  him,  shall  be  repassed  by  two-thirds  of  the 
Senate  and  House  of  Representatives,  according  to  the  Rules 
and  Limitations  prescribed  in  the  Case  of  a  Bill. 

Section  8.  ^The  Congress  shall  have  Power  To  lay  and 
collect  Taxes,  Duties,  Imposts  and  Excises,  to  pay  the  Debts 
and  provide  for  the  common  Defence  and  general  Welfare  of 
the  United  States;  but  all  Duties,  Imposts  and  Excises  shall 
be  uniform  throughout  the  United  States ; 

^To  borrow  Money  on  the  credit  of  the  United  States ; 

^To  regulate  Commerce  with  foreign  Nations,  and  among 
the  several  States,  and  with  the  Indian  Tribes ; 

^To  establish  an  uniform  Rule  of  Naturalization,  and  uni- 
form Laws  on  the  subject  of  Bankruptcies  throughout  the 
United  States; 

''To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign 
Coin,  and  fix  the  Standard  of  Weights  and  Measures; 

^To  provide  for  the  Punishment  of  counterfeiting  the  Se- 
curities and  current  Coin  of  the  United  States; 

^To  establish  Post  Offices  and  post  Roads; 

*To  promote  the  Progress  of  Science  and  useful  Arts,  by 
securing  for  limited  Times  to  Authors  and  Inventors  the  ex- 
clusive Right  to  their  respective  Writings  and  Discoveries ; 

'^To  constitute  Tribunals  inferior  to  the  supreme  Court ; 

^°To  define  and  punish  Piracies  and  Felonies  committed  on 
the  high  Seas,  and  Offences  against  the  Law  of  Nations ; 

"To  declare  War,  grant  Letters  of  IMarque  and  Reprisal, 
and  make  Rules  concerning  Captures  on  Land  and  Water; 


Art.  I,  §  9 


CONSTITUTION  OF  THE  UNITED  STATES. 


694 


^-To  raise  and  support  Armies,  but  no  Appropriation  of 
Money  to  that  Use  shall  be  for  a  longer  Term  than  Two 
Years ; 

*^To  provide  and  maintain  a  Navy; 

^^To  make  Rules  for  the  Government  and  Regulation  of  thte 
land  and  naval  Forces; 

^^To  provide  for  calling  forth  the  Militia  to  execute  the 
Laws  of  the  Union,  suppress  Insurrections  and  repel  Inva- 
sions ; 

^*^To  provide  for  organizing,  arming,  and  disciplining,  the 
Militia,  and  for  governing  such  Part  of  them  as  may  be  em- 
ployed in  the  Service  of  the  United  States,  reserving  to  the 
States  respectively,  the  Appointment  of  the  Officers,  and  the 
Authority  of  training  the  Militia  according  to  the  discipline 
prescribed  by  Congress ; 

^■^To  exercise  exclusive  Legislation  in  all  Cases  whatsoever, 
over  such  District  (not  exceeding  ten  Miles  square)  as  may, 
by  Cession  of  particular  States,  and  the  Acceptance  of  Con- 
gress, become  the  Seat  of  the  Government  of  the  United 
States,  and  to  exercise  like  Authority  over  all  Places  pur- 
chased by  the  Consent  of  the  Legislature  of  the  State  in  which 
the  Same  shall  be,  for  the  Erection  of  Forts,  Magazines,  Ar- 
senals, dock-Yards,  and  other  needful  Buildings ; — And 

^^To  make  all  Laws  which  shall  be  necessary  and  proper  for 
carrying  into  Execution  the  foregoing  Powers,  and  all  otlier 
Powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States,  or  in  any  Department  or  Officer  thereof; 

Section  9.  ^The  Migration  or  Importation  of  such  Per- 
sons as  any  of  the  States  now  existing  shall  think  proper  to 
admit,  shall  not  be  prohibited  by  the  Congress  prior  to  the 
Year  one  thousand  eight  hundred  and  eight,  but  a  Tax  or 
duty  may  be  imposed  on  such  Importation,  not  exceeding  ten 
dollars  for  each  Person. 

^The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be 
Duspended,  unless  when  in  Cases  of  Rebellion  or  Invasion  the 
public  Safety  may  require  it. 

^No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 


695  CONSTITUTION   OF   THE  UNITED   STATES.      Art.  I,  §  10 

^No  Capitation,  or  other  direct,  tax  shall  be  laid,  unless  in 
Proportion  to  the  Census  or  Enumeration  herein  before  di- 
rected to  be  taken. 

^No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from 
any  State. 

®No  Preference  shall  be  given  by  any  Regulation  of  Com- 
merce or  Revenue  to  the  Ports  of  one  State  over  those  of  an- 
other; nor  shall  Vessels  bound  to,  or  from,  one  State,  be 
obliged  to  enter,  clear,  or  pay  Duties  in  another. 

■^No  Money  shall  be  drawn  from  the  Treasury,  but  in  Con- 
sequence of  Appropriations  made  by  Law;  and  a  regular 
Statement  and  Account  of  the  Receipts  and  Expenditures  of 
all  public  Money  shall  be  published  from  time  to  time. 

^No  Title  of  Nobility  shall  be  granted  by  the  United  States ; 
and  no  Person  holding  any  Office  of  Profit  or  Trust  under^ 
them,  shall,  without  the  Consent  of  Congress,  accept  of  any 
present,  Emolument,  Office,  or  Title,  of  any  kind  whatever, 
from  any  King,  Prince,  or  foreign  State. 

Section  10.  ^No  State  shall  enter  into  any  Treaty, 
Alliance,  or  Confederation;  grant  Letters  of  Marque  and 
Reprisal ;  coin  Money ;  emit  Bills  of  Credit ;  make  any  Thing 
but  gold  and  silver  Coin  a  Tender  in  Payment  of  Debts;  pass 
any  Bill  of  Attainder,  ex  post  facto  Law",  or  Law  impairing 
the  Obigation  of  Contracts ;  or  grant  any  Title  of  Nobility. 

^No  state  shall,  without  the  Consent  of  the  Congress,  lay 
any  Imposts  or  Duties  on  Imports  or  Exports,  except  what 
may  be  absolutely  necessary  for  executing  its  inspection 
Laws:  and  the  net  Produce  of  all  Duties  and  Imposts,  laid 
by  any  State  on  Imports  or  Exports,  shall  be  for  the  Use  of 
the  Treasury  of  the  United  States ;  and  all  such  Laws  shall  be 
subject  to  the  Revision  and  Controul  of  the  Congress. 

^No  State  shall,  without  the  Consent  of  Congress,  lay  any 
Duty  or  Tonnage,  keep  Troops,  or  Ships  of  War  in  time  of 
Peace,  enter  into  any  Agreement  or  Compact  with  another 
State,  or  with  a  foreign  Power,  or  engage  in  War,  unless 
actually  invaded,  or  in  such  imminent  Danger  as  will  not 
admit  of  delay. 


Art.  II,  §  1      CONSTITUTION   OF   THE   UNITED   STATES.  696 

ARTICLE  II. 

Section  1.  ^The  executive  Power  shall  be  vested  in  a 
President  of  the  United  States  of  America.  He  shall  hold 
his  Office  during  the  Term  of  four  Years,  and,  together  with 
the  Vice  President,  chosen  for  the  same  Term,  be  elected,  as 
follows : 

^Each  State  shall  appoint,  in  such  Manner  as  the  Legis- 
lature thereof  may  direct,  a  Number  of  Electors,  equal  to  the 
whole  number  of  Senators  and  Representatives  to  which  the 
State  may  be  entitled  in  the  Congress;  but  no  Senator  or 
Representative,  or  Person  holding  an  Office  of  Trust  or  Profit 
under  the  United  States,  shall  be  appointed  an  Elector. 

^["The  electors  shall  meet  in  their  respective  States,  and 
vote  by  ballot  for  two  Persons,  of  whom  one  at  least  shall 
not  be  an  Inhabitant  of  the  same  State  with  themselves. 
And  they  shall  make  a  List  of  all  the  persons  voted  for,  and 
of  the  Number  of  Votes  for  each;  which  List  they  shall  sign 
and  certify,  and  transmit  sealed  to  the  Seat  of  the  Govern- 
ment of  the  United  States,  directed  to  the  President  of  the 
Senate.  The  President  of  the  Senate  shall,  in  the  Presence 
of  the  Senate  and  House  of  Representatives,  open  all  the 
Certificates,  and  the  Votes  shall  then  be  counted.  The  Per- 
son having  the  greatest  Number  of  Votes  shall  be  the  Presi- 
dent, if  such  Number  be  a  Majority  of  the  whole  Number  of 
Electors  appointed ;  and  if  there  be  more  than  one  who  have 
such  Majority,  and  have  an  equal  Number  of  Votes,  then 
the  House  of  Representatives  shall  immediately  ehuse  by 
Ballot  one  of  them  for  President ;  and  if  no  Person  have  a 
Majority,  then  from  the  five  highest  on  the  List  the  said 
House  shall  in  like  Manner  chuse  the  President.  But  in 
ehusing  the  President,  the  Votes  shall  be  taken  by  States,  the 
Representation  from  each  State  having  one  Vote;  A  quorum 
for  this  Purpose  shall  consist  of  a  Member  or  Members  from 
two-thirds  of  the  States,  and  a  Majority  of  all  the  States 
shall  be  necessary  to  a  Choice.  In  every  Case,  after  the 
Choice  of  the  President,  the  Person  having  the  greatest  Num- 
ber of  Votes  of  the  Electors  shall  be  the  Vice-President.  But 
if  there  should  remain  two  or  more  who  have  equal  Votes, 


697       CONSTITUTION  OF  THE  UNITED  STATES.   Art.  II,  §  2 

the  Senate  shall  chuse  from  them  by  Ballot  the  Vice-Presi- 
dent."] 

This  Clause  has  been  superseded  by  the  twelfth  amend- 
ment, p.  686. 

*The  Congress  may  determine  the  Time  of  chusing  the 
Electors,  and  the  Day  on  which  they  shall  give  their  Votes; 
which  Day  shall  be  the  same  throughout  the  United  States. 

'No  person  except  a  natural  born  Citizen,  or  a  Citizen  of 
the  United  States,  at  the  time  of  the  adoption  of  this  Con- 
stitution, shall  be  eligible  to  the  Office  of  President;  neither 
shall  any  Person  be  eligible  to  that  Office  who  shall  not  have 
attained  to  the  Age  of  thirty-five  Years,  and  been  fourteen 
Years  a  Resident  within  the  United  States. 

^In  case  of  the  Removal  of  the  President  from  Office,  or  of 
his  Death,  Resignation,  or  Inability  to  discharge  the  Powers 
and  Duties  of  the  said  Office,  the  same  shall  devolve  on  the 
Vice  President,  and  the  Congress  may  by  Law  provide  for 
the  Case  of  Removal,  Death,  Resignation,  or  Inability,  both 
of  the  President  and  Vice  President,  declaring  what  Officer 
shall  then  act  as  President,  and  such  Officer  shall  act  accord- 
ingly, until  the  Disability  be  removed,  or  a  President  shall 
be  elected. 

^The  President  shall,  at  stated  Times,  receive  for  his 
Services  a  Compensation,  which  shall  neither  be  encreased 
nor  diminished  during  the  Period  for  which  he  shall  have 
been  elected,  and  he  shall  not  receive  within  that  Period  any 
other  Emolument  from  the  United  States,  or  any  of  them. 

^Before  he  enter  on  the  Execution  of  his  Office,  he  shall 
take  the  following  Oath  or  Affirmation: — *'I  do  solemnly 
swear  (or  affirm)  that  I  will  faithfully  execute  the  Office  of 
President  of  the  United  States,  and  will  to  the  best  of  my 
Ability,  preserve,  protect  and  defend  the  Constitution  of  the 
United  States." 

Section  2.  ^The  President  shall  be  Commander  in  Chief 
of  the  Army  and  Navy  of  the  United  States,  and  of  the 
Militia  of  the  several  States,  when  called  into  the  actual 
Service  of  the  United  States;  he  may  require  the  Opinion, 
in  writing,  of  the  principal  Officer  in  each  of  the  executive 
Departments,   upon  any   Subject  relating  to  the  Duties  of 


Art.  Ill,  §  1      CONSTITUTION  OF  THE  UNITED   STATES.  698 

their  respective  Offices,  and  he  shall  have  power  to  grant 
Reprieves  and  Pardons  for  Offenses  against  the  United 
States,  except  in  Cases  of  Impeachment. 

^He  shall  have  Power,  by  and  with  the  Advice  and  Consent 
of  the  Senate,  to  make  Treaties,  provided  two  thirds  of  the 
Senators  present  concur;  and  he  shall  nominate,  and  hy  and 
with  the  Advice  and  Consent  of  the  Senate,  shall  appoint 
Ambassadors,  other  public  Ministers  and  Consuls,  Judges  of 
the  supreme  Court,  and  all  other  Officers  of  the  United  States, 
whose  Appointments  are  not  herein  otherwise  provided  for, 
and  which  shall  be  established  by  Law:  but  the  Congress 
may  by  Law  vest  the  Appointment  of  such  inferior  Officers  as 
they  think  proper,  in  the  President  alone,  in  the  Courts  of 
Law,  or  in  the  Heads  of  Departments. 

^The  President  shall  have  Power  to  fill  up  all  Vacancies 
that  may  happen  during  the  Recess  of  the  Senate,  by  grant- 
ing Commissions  which  shall  expire  at  the  End  of  their  next 
Session. 

Section  3.  He  shall  from  time  to  time  give  to  the  Congress 
Information  of  the  State  of  the  Union,  and  recommend  to 
their  Consideration  such  Measures  as  he  shall  judge  neces- 
sary and  expedient;  he  may,  on  extraordinary  Occasions,  con- 
vene both  Houses,  or  either  of  them,  and  in  Case  of  Dis- 
agreement between  them,  with  Respect  to  the  Time  of 
Adjournment,  he  may  adjourn  them  to  such  Time  as  he  shall 
think  proper;  he  shall  receive  Ambassadors  and  other  public 
Ministers ;  he  shall  take  Care  that  the  Laws  be  faithfully 
executed,  and  shall  Commission  all  the  Officers  of  the  United 
States. 

Section  4.  The  President,  Vice  President  and  all  civil 
Officers  of  the  United  States,  shall  be  removed  from  Office  on 
Impeachment  for,  and  Conviction  of,  Treason,  Bribery,  or 
other  high  Crimes  and  Misdemeanors. 

ARTICLE  IIL 

Section  1.  The  judicial  Power  of  the  United  States,  shall 
be  vested  in  one  supreme  Court,  and  in  such  inferior  Courts 
as  the  Congress  may  from  time  to  time  ordain  and  astablish. 


699  CONSTITUTION  OF  THE  UNITED  STATES.      Art.  Ill,  §§  2,  3 

The  Judges,  both  of  the  supreme  and  inferior  Courts,  shall 
hold  their  Offices  during  good  Behaviour,  and  shall,  at  stated 
Times,  receive  for  their  Services,  a  Compensation,  which  shall 
not  be  diminished  during  their  Continuance  in  Office. 

Section  2.  ^The  judicial  Power  shall  extend  to  all  Cases, 
in  Law  and  Equity,  arising  under  this  Constitution,  the  Laws 
of  the  LTnited  States,  and  Treaties  made,  or  w^hich  shall  be 
made,  under  their  Authority; — to  all  Cases  affecting  Am- 
bassadors, other  public  Ministers  and  Consuls ; — to  all  Cases 
of  admiralty  and  maritime  Jurisdiction; — to  Controversies  to 
Avhich  the  United  States  shall  be  a  Party; — to  Controversies 
between  two  or  more  States; — between  a  State  and  Citizens 
of  another  State; — between  Citizens  of  different  States, — 
between  Citizens  of  the  same  State  claiming  Lands  under 
Grants  of  different  States,  and  between  a  State,  or  the  Citi- 
zens thereof,  and  foreign  States,  Citizens  or  Subjects. 

^In  all  Cases  affecting  Ambassadors,  other  public  Ministers 
and  Consuls,  and  those  in  which  a  State  shall  be  Party,  the 
Supreme  Court  shall  have  original  Jurisdiction.  In  all  the 
other  Cases  before  mentioned,  the  supreme  Court  shall  have 
appellate  Jurisdiction,  both  as  to  Law  and  Fact,  with  such 
Exceptions,  and  under  such  Regulations  as  the  Congress  shall 
make. 

^The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment, 
shall  be  by  Jury;  and  such  Trial  shall  be  held  in  the  State 
where  the  said  Crimes  shall  have  been  committed;  but  when 
not  committed  within  any  State,  the  Trial  shall  be  at  such 
Place  or  Places  as  the  Congress  may  by  Law  have  directed. 

Section  3.  ^Treason  against  the  United  States,  shall  con- 
sist only  in  levying  War  against  them,  or  in  adhering  to  their 
Enemies,  giving  them  Aid  and  Comfort.  No  Person  shall  be 
convicted  of  Treason  unless  on  the  Testimony  of  two  Wit- 
nesses to  the  same  overt  Act,  or  on  Confession  in  open  Court. 

^The  Congress  shall  have  Power  to  declare  the  Punishment 
of  Treason,  but  no  Attainder  of  Treason  shall  work  Cor- 
ruption of  Blood,  or  Forfeiture  except  during  the  Life  of  the 
Person  attainted. 


Art  IV,  §  §  1-4      CONSTITUTION   OF   THE   UNITED  STATES.  700 

ARTICLE  IV. 

Section  1.  Full  Faith  and  Credit  shall  be  given  in  each 
State  to  the  public  Acts,  Records,  and  judicial  Proceedings 
of  every  other  State.  And  the  Congress  may  by  general  Laws 
prescribe  the  Manner  in  which  such  Acts,  Records  and  Pro- 
ceedings shall  be  proved,  and  the  Effect  thereof. 

Section  2.  ^The  Citizens  of  each  State  shall  be  entitled 
to  all  Privileges  and  Immunities  of  Citizens  in  the  several 
States. 

^A  Person  charged  in  any  State  with  Treason,  Felony,  or 
other  Crime,  who  shall  flee  from  Justice,  and  be  found  in 
another  State,  shall  on  Demand  of  the  executive  Authority 
of  the  State  from  which  he  fled,  be  delivered  up  to  be  re- 
moved to  the  State  having  Jurisdiction  of  the  Crime. 

^No  Person  held  to  Service  or  Labour  in  one  State,  under 
the  Laws  thereof,  escaping  into  another,  shall,  in  Consequence 
of  any  Law  or  Regulation  therein,  be  discharged  from  such 
Service  or  Labour,  but  shall  be  delivered  up  on  Claim  of  the 
Party  to  whom  such  Service  or  Labour  may  be  due. 

Section  3.  ^New  States  may  be  admitted  by  the  Congress 
into  this  Union ;  but  no  new  State  shall  be  formed  or  erected 
within  the  Jurisdiction  of  any  other  State;  nor  any  State  be 
formed  by  the  Junction  of  two  or  more  States,  or  Parts  of 
States,  without  the  Consent  of  the  Legislatures  of  the  States 
concerned  as  well  as  of  the  Congress. 

^The  Congress  shall  have  Power  to  dispose  of  and  make 
all  needful  Rules  and  Regulations  respecting  the  Territory 
or  other  Property  belonging  to  the  United  States ;  and 
nothing  in  this  Constitution  shall  be  so  construed  as  to  Preju- 
dice any  Claims  of  the  United  States,  or  of  any  particular 
State. 

Section  4.  The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  Republican  Form  of  Government,  and 
shall  protect  each  of  them  against  Invasion ;  and  on  Applica- 
tion of  the  Legislature,  or  of  the  Executive  (when  the  Legis- 
lature cannot  be  convened)  against  domestic  Violence. 


701  CONSTITUTION    OF    THE    UNITED    STATES.      ArtS.  V,  VI 

ARTICLE  V. 

The  Congress,  whenever  two  thirds  of  both  Houses  shall 
deem  it  necessary,  shall  propose  Amendments  to  this  Con- 
stitution, or,  on  the  Application  of  the  Legislatures  of  two 
thirds  of  the  several  States,  shall  call  a  Convention  for  pro- 
posing Amendments,  which,  in  either  Case,  shall  be  valid  to 
all  Intents  and  Purposes,  as  Part  of  this  Constitution,  when 
ratified  by  the  Legislatures  of  three  fourths  of  the  several 
States,  or  by  Conventions  in  three  fourths  thereof,  as  the  one 
or  the  other  Mode  of  Ratification  may  be  proposed  by  the 
Congress;  Provided  that  no  Amendment  which  may  be  made 
prior  to  the  Year  One  thousand  eight  hundred  and  eight  shall 
in  any  Manner  affect  the  first  and  fourth  Clauses  in  the 
Ninth  Section  of  the  first  Article ;  and  that  no  State,  with- 
out its  Consent,  shall  be  deprived  of  its  equal  Suffrage  in  the 
Senate. 

ARTICLE  VL 

*A11  Debts  contracted  and  Engagements  entered  into,  be- 
fore the  Adoption  of  this  Constitution,  shall  be  as  valid 
against  the  United  States  under  this  Constitution,  as  under 
the  Confederation. 

^This  Constitution,  and  the  Laws  of  the  United  States  which 
shall  be  made  in  Pursuance  thereof ;  and  all  Treaties  made,  or 
which  shall  be  made,  under  the  Authority  of  the  United 
States,  shall  be  the  supreme  Law  of  the  Land ;  and  the  Judges 
in  every  State  shall  be  bound  thereby,  any  Thing  in  the  Con- 
stitution or  Laws  of  any  State  to  the  Contrary  notwithstand- 
ing. 

^The  Senators  and  Representatives  before  mentioned,  and 
the  Members  of  the  several  State  Legislatures,  and  all  execu- 
tive and  judicial  Officers,  both  of  the  United  States  and  of  the 
several  States,  shall  be  bound  by  Oath  or  Affirmation,  to 
support  this  Constitution ;  but  no  religious  Test  shall  ever  be 
required  as  a  Qualification  to  any  Office  or  public  Trust  under 
the  United  States. 


Art.  VII 


CONSTITUTION  OF  THE  UNITED  STATES. 


702 


ARTICLE  VII. 
The  Ratification  of  the  Conventions  of  nine  States,  shall  be 
sufficient  for  the  establishment  of  this  Constitution  between 
the  States  so  ratifying  the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of  the  States 
present  the  Seventeenth  Day  of  September  in  the  Year  of 
our  Lord  one  thousand  seven  hundred  and  Eighty  seven, 
and  of  the  Independence  of  the  United  States  of  America 
the  Twelfth.  In  Witness  whereof  We  have  hereunto  sub- 
scribed our  Names, 

G«     :  WASHINGTON— 
Presidt.  and  Deputy  from  Virginia 


John  Langdon 


Nathaniel  Gorham 


W.  Saml.  Johnson 


New  HampsJiire. 

Nicholas  Gilman 

Massachusetts. 

Rufus  King 

Connecticut. 

Roger  Sherman 


New  York. 
Alexander  Hamilton 


Wil     :  Livingston 
David  Brearley 


B.  Franklin 
Thomas  Mifflin 
Robt.  Morris 
Geo,  Clymer 


Geo     :  Read 
Gunning  Bedford  Jun 
John  Dickinson 


New  Jersey. 

Wm.  Paterson 
Jona     :  Dayton 

Pennsylvania. 

Thos.  Fitzsimons 
Jared  IngersoU 
James  Wilson 
Gouv  Morris 

Delaware. 

Richard  Bassett 
Jaco     :  Broom 


703  CONSTITUTION  OF  THE  UNITED  STATES. 

Maryland. 
James  McHenry  Danl.  Carroll 

Dan  of  St  Thos  Jenifer 

Virginia. 
John  Blair —  James  IMadison  Jr. 

North  Carolina. 

Wm.  Blount  Hu  Williamson 

Riehd.  Dobbs  Spaight 

South  Carolina. 
J.  Rutledge  Charles  Pinekney 

Charles  Cotesworth  Pinckney  Pierce  Butler 

Georgia. 
William  Few  Abr  Baldwin 

Attest  WILLIAM  JACKSON,  Secretary 


Amendm.,  Arts.  I-V     constitution  of  u.  s.  704 

ARTICLES  IN  ADDITION  TO,  AND  AMENDMENT  OF,  THE  CONSTITU- 
TION OF  THE  UNITED  STATES  OF  AMERICA,  PROPOSED  BY  CON- 
GRESS, AND  RATIFIED  BY  THE  LEGISLATURES  OF  THE  SEVERAL 
STATES  PURSUANT  TO  THE  FIFTH  ARTICLE  OF  THE  ORIGINAL 
CONSTITUTION. 

[ARTICLE  I.] 
Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridg- 
ing the  freedom  of  speech,  or  of  the  press ;  or  the  right  of  the 
people  peaceably  to  assemble,  and  to  petition  the  Government 
for  a  redress  of  grievances. 

[ARTICLE  II.] 
A  well  regulated  Militia,  being  necessary  to  the  security  of 
a  free  State,  the  right  of  the  people  to  keep  and  bear  Arms, 
shall  not  be  infringed. 

[ARTICLE  III.] 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any 
house,  without  the  consent  of  the  Owner,  nor  in  time  of  war, 
but  in  a  manner  to  be  prescribed  by  law. 

[ARTICLE  IV.] 
The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches  and 
seizures,  shall  not  be  violated,  and  no  Warrants  shall  issue, 
but  upon  probable  cause,  supported  by  Oath  or  affirmation, 
and  particularly  describing  the  place  to  be  searched,  and  the 
persons  or  things  to  be  seized. 

[ARTICLE  v.] 
No  person  shall  be  held  to  answer  for  a  capital,  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indictment 
of  a  Grand  Jury,  except  in  cases  arising  in  the  land  or  naval 
forces,  or  in  the  Militia,  when  in  actual  service  in  time  of 
War  or  public  danger;  nor  shall  any  person  be  subject  for 
the  same  offense  to  be  twice  put  in  jeopardy  of  life  or  limb; 


705  CONSTITUTION  OF  u.  s.     Amendm.,  Arts.  VI-XI 

nor  shall  be  compelled  in  any  Criminal  Case  to  be  a  witness 
against  himself,  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law;  nor  shall  private  property  be 
taken  for  public  use,  without  just  compensation. 

[ARTICLE  VI.] 
In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been  com- 
mitted, which  district  shall  have  been  previously  ascertained 
by  law,  and  to  be  informed  of  the  nature  and  cause  of  the 
accusation;  to  be  confronted  with  the  witnesses  against  him; 
to  have  compulsory  process  for  obtaining  Witnesses  in  his 
favor,  and  to  have  the  Assistance  of  Counsel  for  his  defense. 

[ARTICLE  VII.] 
In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved,  and  no  fact  tried  by  a  jury  shall  be  otherwise 
re-examined  in  any  Court  of  the  United  States,  than  accord- 
ing to  the  rules  of  the  common  law. 

[ARTICLE  VIII.] 
Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

[ARTICLE  IX.] 
The   enumeration  in   the   Constitution,   of  certain   rights, 
shall  not  be  construed  to  deny  or  disparage  others  retained 
by  the  people. 

[ARTICLE  X.] 
The  powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively,  or  to  the  people. 

[ARTICLE  XL] 
The  Judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  commenced  or 

Constitution — 45 


Amendm.,  Art.  XII     constitution  op  u.  s.  706 

prosecuted  against  one  of  the  United  States  by  Citizens  of 
another  State,  or  by  Citizens  or  Subjects  of  any  Foreign 
State. 

[ARTICLE  XII.] 
The  Electors  shall  meet  in  their  respective  states,  and  vote 
by  ballot  for  President  and  Vice-President,  one  of  whom,  at 
least,  shall  not  be  an  inhabitant  of  the  same  state  with  them- 
selves; they  shall  name  in  their  ballots  the  person  voted  for 
as  President,  and  in  distinct  ballots  the  person  voted  for  as 
Vice-President,  and  they  shall  make  distinct  lists  of  all  per- 
sons voted  for  as  President,  and  of  all  persons  voted  for  as 
Vice-President,  and  of  the  number  of  votes  for  each,  which 
lists  they  shall  sign  and  certify,  and  transmit  sealed  to  the 
seat  of  the  government  of  the  United  States,  directed  to  the 
President  of  the  Senate ;— The  President  of  the  Senate  shall, 
in  the  presence  of  the  Senate  and  House  of  Representatives, 
open  all  the  certificates  and  the  votes  shall  then  be  counted ; — 
The  person  having  the  greatest  number  of  votes  for  Presi- 
dent, shall  be  the  President,  if  such  number  be  a  majority  of 
the  whole  number  of  Electors  appointed;  and  if  no  person 
have  such  majority,  then  from  the  persons  having  the  highest 
numbers  not  exceeding  three  on  the  list  of  those  voted  for  as 
President,  the  House  of  Representatives  shall  choose  im- 
mediately, by  ballot,  the  President.  But  in  choosing  the 
President,  the  votes  shall  be  taken  by  states,  the  representa- 
tion from  each  state  having  one  vote ;  a  quorum  for  this  pur- 
pose shall  consist  of  a  member  or  members  from  two-thirds 
of  the  states,  and  a  majority  of  all  the  states  shall  be  neces- 
sary to  a  choice.  And  if  the  House  of  Representatives  shall 
not  choose  a  President  whenever  the  right  of  choice  shall 
devolve  upon  them,  before  the  fourth  day  of  March  next 
following,  then  the  Vice-President  shall  act  as  President,  as 
in  the  case  of  the  death  or  other  constitutional  disability  of 
the  President.  The  person  having  the  greatest  number  of 
votes  as  Vice-President,  shall  be  the  Vice-President,  if  such 
number  be  a  majority  of  the  whole  number  of  Electors  ap- 
pointed, and  if  no  person  have  a  majority,  then  from  the  two 
highest  numbers  on  the  list,  the  Senate  shall  choose  the  Vice- 


707  CONSTITUTION  OP  u.  s.     Amendm.,  Arts.  XIII,  XIV 

President;  a  quorum  for  the  purpose  shall  consist  of  two- 
thirds  of  the  whole  number  of  Senators,  and  a  majority  of 
the  whole  number  shall  be  necessary  to  a  choice.  But  no 
person  constitutionally  ineligible  to  the  office  of  President 
shall  be  eligible  to  that  of  Vice-President  of  the  United 
States. 

[ARTICLE  XIIL] 
Section  1.     Neither  slavery  nor  involuntary  servitude,  ex- 
cept as  a  punishment  for  crime  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  within  the  United  States,  or 
any  place  subject  to  their  jurisdiction. 

Section  2,  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 

[ARTICLE  XIV.] 
Section  1.  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of 
the  United  States  and  of  the  State  wherein  they  reside.  No 
State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States ;  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws. 

Section  2.  Representatives  shall  be  apportioned  among 
the  several  States  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  State,  exclud- 
ing Indians  not  taxed.  But  when  the  right  to  vote  at  any 
election  for  the  choice  of  electors  for  President  and  Vice- 
President  of  the  United  States,  Representatives  in  Congress, 
the  Executive  and  Judicial  officers  of  a  State,  or  the  mem- 
bers of  the  Legislature,  thereof,  is  denied  to  any  of  the  male 
inhabitants  of  such  State,  being  twenty-one  years  of  age,  and 
citizens  of  the  United  States,  or  in  any  way  abridged,  except 
for  participation  in  rebellion,  or  other  crime,  the  basis  of 
representation  therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  bear  to  the 
whole  number  of  male  citizens  twenty-one  years  of  age  in 
such  State. 


Amendm.,  Arts.  XV,  XVI     constitution  of  u.  s.  708 

Section  3.  No  person  shall  be  a  Senator  or  Representa- 
tive in  Congress,  or  elector  of  President  and  Vice-President, 
or  hold  any  office,  civil  or  military,  under  the  United  States, 
or  under  any  State,  who,  having  previously  taken  an  oath, 
as  a  member  of  Congress,  or  as  an  officer  of  the  United  States, 
or  as  a  member  of  any  State  legislature,  or  as  an  executive 
or  judicial  officer  of  any  State,  to  support  the  Constitution 
of  the  United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to  the 
enemies  thereof.  But  Congress  may  by  a  vote  of  two-thirds 
of  each  House,  remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the  United 
States,  authorized  by  law,  including  debts  incurred  for  pay- 
ment of  pensions  and.  bounties  for  services  in  suppressing 
insurrection  or  rebellion,  shall  not  be  questioned.  But 
neither  the  United  States  nor  any  State  shall  assume  or  pay 
any  debt  or  obligation  incurred  in  aid  of  insurrection  or  re- 
bellion against  the  United  States,  or  any  claim  for  the  loss 
or  emancipation  of  any  slave;  but  all  such  debts,  obligations 
and  claims  shall  be  held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce,  by 
appropriate  legislation,  the  provisions  of  this  article. 

[ARTICLE  XV.] 

Section  1.  The  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United  States,  or 
by  any  State  on  account  of  race,  color,  or  previous  condition 
of  servitude. 

Section  2.  The  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 

[ARTICLE  XVI.] 
The  Congress  shall  have  power  to  lay  and  collect  taxes  on 
incomes,  from  whatever  source  derived,  without  apportion- 
ment among  the  several  states,  and  without  regard  to  any 
census  or  enumeration.     (Effective  February  3,  1913.) 


709  CONSTITUTION  OF  u.  s.     Amendm.,  Art.  XVII 

[ARTICLE  XVII.] 
(Amendment  to  Article  I,  section  3,  subdivision  1.) 

The  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  state,  elected  by  the  people  thereof,  for 
six  years ;  and  each  Senator  shall  have  one  vote.  The  electors 
in  each  state  shall  have  the  qualifications  requisite  for  elect- 
ors of  the  most  numerous  branch  of  the  state  legislatures. 

When  vacancies  happen  in  the  representation  of  any  state 
in  the  Senate,  the  executive  authority  of  such  state  shall  issue 
writs  of  election  to  fill  such  vacancies;  Provided,  that  the 
legislature  of  any  state  may  empower  the  executive  thereof 
to  make  temporary  appointment  until  the  people  fill  the 
vacancies  by  election  as  the  legislature  may  direct. 

This  amendment  shall  not  be  so  construed  as  to  effect  the 
election  or  term  of  any  Senator  chosen  before  it  becomes 
valid  as  part  of  the  Constitution.     (Effective  May  31,  1913.) 


TREATY    OF    PEACE,    FRIENDSHIP,    LIMITS,     AND 
SETTLEMENT. 

BETWEEN    THE    UNITED    STATES    OF    AMEEICA    AND    THE 
MEXICAN  REPUBLIC. 

Dated  at  Guadalupe  Hidalgo,  2d  February,  1848. 
Exchanged  at  Queretaro,  30th  May,  1848. 
Ratified  by  the  President  U.  S.,  16th  March,  1848. 
Proclaimed  by  the  President  U.  S.,  4th  July,  1848. 


BY  THE  PRESIDENT  OF  THE  UNITED  STATES  OF  AMERICA. 
A   PROCLAMATION. 

Whereas  a  Treaty  of  Peace,  Friendship,  Limits,  and  Settle- 
ment, between  the  United  States  of  America  and  the  Mexican 
Republic,  was  concluded  and  signed  at  the  city  of  Guadalupe 
Hidalgo,  on  the  second  day  of  February,  one  thousand  eight 
hundred  and  forty-eight,  which  Treaty,  as  amended  by  the 
senate  of  the  United  States,  and  being  in  the  English  and 
Spanish  languages,  is  word  for  word  as  follows : 

In  the  Name  of  Almighty  God: 

The  United  States  of  America  and  the  United  Mexican 
States,  animated  by  a  sincere  desire  to  put  an  end  to  the 
calamities  of  the  war  which  unhappily  exists  between  the 
two  republics,  and  to  establish  upon  a  solid  basis  relations  of 
peace  and  friendship,  which  shall  confer  reciprocal  benefits 
upon  the  citizens  of  bot"h,  and  assure  the  concord,  harmony, 
and  mutual  confidence,  wherein  the  two  people  should  live, 
as  good  neighbors,  have  for  that  purpose  appointed  their  re- 
spective plenipotentiaries — that  is  to  say,  the  President  of 
the  United  States  has  appointed  Nicholas  P.  Trist,  a  citizen 
of  the  United  States,  and  the  President  of  the  Mexican  Re- 
public has  appointed  Don  Luis  Gonzaga  Cuevas,  Don  Ber- 
nardo Couto,  and  Don  Miguel  Atristan,  citizens  of  the  said 
Republic,  who,  after  a  reciprocal  communication  of  their  re- 
spective full  powers,  have,  under  the  protection  of  Almighty 
God,  the  author  of  peace,  arranged,  agreed  upon,  and  signed 
the  following: 

(711) 


Arts.  I-III  TREATY  OF  GUADALUPE  HIDALGO.  712 

Treaty  of  Peace,  FriendsJiip,  Limits,  and  Settlement,  he- 
tiveen  the  United  States  of  America  and  the  Mexican 
Repaihlic. 

ARTICLE  I. 

There  shall  be  firm  and  universal  peace  between  the  United 
States  of  America  and  the  Mexican  Republic,  and  between 
their  respective  countries,  territories,  cities,  towns,  and 
people,  without  exception  of  places  or  persons. 

ARTICLE  II. 

Immediately  upon  the  signature  of  this  Treaty,  a  conven- 
tion shall  be  entered  into  between  a  commissioner  or  com- 
missioners appointed  by  the  General-in-Chief  of  the  forces 
of  the  United  States,  and  such  as  may  be  appointed  by  the 
Mexican  government,  to  the  end  that  a  provisional  suspension 
of  hostilities  shall  take  place,  and  that,  in  the  places  occupied 
by  the  said  forces,  constitutional  order  may  be  re-established, 
as  regards  the  political,  administrative,  and  judicial  branches, 
so  far  as  this  shall  be  permitted  by  the  circumstances  of  mili- 
tary occupation. 

ARTICLE  III. 

Immediately  upon  the  ratification  of  the  present  Treaty  by 
the  government  of  the  United  States,  orders  shall  be  trans- 
mitted to  the  commanders  of  their  land  and  naval  forces, 
requiring  the  latter  (provided  this  Treaty  shall  then  have 
been  ratified  by  the  government  of  the  Mexican  Republic, 
and  the  ratifications  exchanged)  immediately  to  desist  from 
blockading  any  Mexican  ports ;  and  requiring  the  former 
(under  the  same  condition)  to  commence,  at  the  earliest 
moment  practicable,  withdrawing  all  troops  of  the  United 
States  then  in  the  interior  of  the  Mexican  Republic,  to  points 
that  shall  be  selected  by  common  agreement,  at  a  distance 
from  the  seaports  not  exceeding  thirty  leagues;  and  such 
evacuation  of  the  interior  of  the  Republic  shall  be  completed 
with  the  least  possible  delay ;  the  Mexican  government  hereby 
binding  itself  to  afford  every  facility  in  its  power  for  render- 
ing the  same  convenient  to  the  troops,  on  their  march  and  in 
their  new  positions,  and  for  promoting  a  good  understanding 


713  TREATY   OF   GUADALUPE    HIDALGO.  Art.  IV 

between  them  and  the  inhabitants.  In  like  manner,  orders 
shall  be  despatched  to  the  persons  in  charge  of  the  custom- 
houses at  all  ports  occupied  by  the  forces  of  the  United  States, 
requiring  them  (under  the  same  condition)  immediately  to 
deliver  possession  of  the  same  to  the  persons  authorized  by 
the  Mexican  government  to  receive  it,  together  with  all  bonds 
and  evidences  of  debt  for  duties  on  importations  and  on  ex- 
portations,  not  yet  fallen  due.  Moreover,  a  faithful  and 
exact  account  shall  be  made  out,  showing  the  entire  amount 
of  all  duties  on  imports  and  on  exports,  collected  at  such 
custom-houses,  or  elsewhere  in  Mexico,  by  authority  of  the 
United  States,  from  and  after  the  day  of  the  ratification  of 
this  Treaty  by  the  government  of  the  Mexican  Republic ;  and 
also  an  account  of  the  cost  of  collection ;  and  such  entire 
amount,  deducting  only  the  cost  of  collection,  shall  be  deliv- 
ered to  the  Mexican  government,  at  the  city  of  Mexico,  within 
three  months  after  the  exchange  of  ratifications. 

The  evacuation  of  the  capital  of  the  Mexican  Republic  by 
the  troops  of  the  United  States,  in  virtue  of  the  above  stipu- 
lation shall  be  completed  in  one  month  after  the  orders  there 
stipulated  for  shall  have  been  received  by  the  commander  of 
said  troops,  or  sooner  if  possible. 

ARTICLE  IV. 

Immediately  after  the  exchange  of  ratifications  of  the 
present  Treaty,  all  castles,  forts,  territories,  places,  and  pos- 
sessions, which  have  been  taken  or  occupied  by  the  forces  of 
the  United  States  during  the  present  war,  within  the  limits 
of  the  Mexican  Republic,  as  about  to  be  established  by  the 
following  article,  shall  be  definitely'  restored  to  the  said  re- 
public, together  with  all  the  artillery,  arms,  apparatus  of  war, 
munitions,  and  other  public  property,  which  were  in  the  said 
castles  and  forts  when  captured,  and  which  shall  remain  there 
at  the  time  when  this  Treaty  shall  be  duly  ratified  by  the 
government  of  the  Mexican  Republic.  To  this  end,  im- 
mediately upon  the  signature  of  this  Treaty,  orders  shall  be 
despatched  to  the  American  officers  commanding  such  castles 
and  forts,  securing  against  the  removal  or  destruction  of  any 


Art.  V  TREATY  OF  GUADALUPE  HIDALGO.  714  ^ 

such  artillery,  arms,  apparatus  of  war,  munitions,  or  other 
public  property.  The  city  of  Mexico,  within  the  inner  line 
of  intrenchments  surrounding  the  said  city,  is  comprehended 
in  the  above  stipulations,  as  regards  the  restoration  of  artil- 
lery, apparatus  of  war,  etc. 

The  final  evacuation  of  the  territory  of  the  Mexican  Repub- 
lic, by  the  forces  of  the  United  States,  shall  be  completed  in 
three  months  from  the  said  exchange  of  ratifications,  or 
sooner  if  possible :  the  Mexican  government  hereby  engaging, 
as  in  the  foregoing  article,  to  use  all  means  in  its  power  for 
facilitating  such  evacuation,  and  rendering  it  convenient  to 
the  troops,  and  for  promoting  a  good  understanding  between 
them  and  the  inhabitants. 

If,  however,  the  ratification  of  this  Treaty  by  both  parties 
should  not  take  place  in  time  to  allow  the  embarcation  of  the 
troops  of  the  United  States  to  be  completed  before  the  com- 
mencement of  the  sickly  season,  at  the  Mexican  ports  on  the 
Gulf  of  Mexico,  in  such  case  a  friendly  arrangement  shall  be 
entered  into  between  the  General-in-Chief  of  the  said  troops 
and  the  Mexican  government,  whereby  healthy  and  otherwise 
suitable  places,  at  a  distance  from  the  ports  not  exceeding 
thirty  leagues,  shall  be  designated  for  the  residence  of  such 
troops  as  may  not  yet  have  embarked,  until  the  return  of  the 
healthy  season.  And  the  space  of  time  here  referred  to  as 
comprehending  the  sickly  season,  shall  be  understood  to  ex- 
tend from  the  first  day  of  May  to  the  first  day  of  November. 

All  prisoners  of  war  taken  on  either  side,  on  land  or  on 
sea,  shall  be  restored  as  soon  as  practicable  after  the  exchange 
of  ratifications  of  this  Treaty.  It  is  also  agreed  that  if  any 
Mexicans  should  now  be  held  as  captives  by  any  savage  tribe 
M'ithin  the  limits  of  the  United  States,  as  about  to  be  estab- 
lished by  the  following  article,  the  government  of  the  said 
United  States  will  exact  the  release  of  such  captives,  and 
cause  them  to  be  restored  to  their  country. 

ARTICLE  V. 

The  boundary  line  between  the  two  republics  shall  com- 
mence in  the  Gulf  of  Mexico,  three  leagues  from  laud,  oppo- 
site the  mouth  of  the  Rio  Grande,  otherwise  called  Rio  Bravo 


715  TREATY   OP   GUADALUPE   HIDALGO.  Art.  V 

del  Norte,  or  opposite  the  mouth  of  its  deepest  branch,  if  it 
should  have  more  than  one  branch  emptying  directly  into  the 
sea;  from  thence  up  the  middle  of  that  river,  following  the 
deepest  channel,  where  it  has  more  than  one,  to  the  point 
where  it  strikes  the  southern  boundary  of  New  Mexico; 
thence,  westwardly,  along  the  whole  southern  boundary  of 
New  Mexico  (which  runs  north  of  the  town  called  Paso)  to  its 
western  termination ;  thence,  northward,  along  the  western 
line  of  New  Mexico,  until  it  intersects  the  first  branch  of  the 
river  Gila  (or  if  it  should  not  intersect  any  branch  of  that 
river,  then  to  the  point  on  the  said  line  nearest  to  such 
branch,  and  thence  in  a  direct  line  to  the  same)  ;  thence  down 
the  middle  of  the  said  branch  and  of  the  said  river,  until  it 
empties  into  the  Rio  Colorado;  thence  across  the  Rio  Colo- 
rado, following  the  division  line  between  Upper  and  Lower 
California,  to  the  Pacific  Ocean. 

The  southern  and  western  limits  of  New  Mexico,  mentioned 
in  this  article,  are  those  laid  down  in  the  map  entitled  "Map 
of  the  United  Mexican  States,  as  organized  and  defined  by 
various  Acts  of  the  Congress  of  said  Republic,  and  constructed 
according  to  the  best  Authorities.  Revised  edition.  Published 
at  New  York,  in  1847,  by  J.  Disturnell. "  Of  which  map  a 
cop5^  is  added  to  this  Treaty,  bearing  the  signatures  and  seals 
of  the  undersigned  plenipotentiaries.  And,  in  order  to  pre- 
clude all  difficulty  in  tracing  upon  the  ground  the  limit  sepa- 
rating Upper  from  Lower  California,  it  is  agreed  that  the 
said  limit  shall  consist  of  a  straight  line  drawn  from  the  mid- 
dle of  the  Rio  Gila,  where  it  unites  with  the  Colorado,  to  a 
point  on  the  coast  of  the  Pacific  Ocean  distant  one  marine 
league  due  south  of  the  southernmost  point  of  the  port  of 
San  Diego,  according  to  the  plan  of  said  port  made  in  the 
year  1782  by  Don  Juan  Panto j a,  second  sailing-master  of  the 
Spanish  fleet,  and  published  at  Madrid  in  the  year  1802,  in 
the  Atlas  to  the  voyage  of  the  schooners  Sutil  and  Mexicana, 
of  which  plan  a  copy  is  hereunto  added,  signed  and  sealed  by 
the  respective  plenipotentiaries. 

In  order  to  designate  the  boundary  line  with  due  precision, 
upon  authoritative  maps,  and  to  establish  upon  the  ground 
landmarks  which  shall  show  the  limits  of  both  republics,  as 


Arts.  VI,  VII      TREATY  OF  GUADALUPE  HIDALGO. 


716 


described  in  the  present  article,  the  two  governments  shall 
each  appoint  a  commissioner  and  a  surveyor,  who,  before  the 
expiration  of  one  year  from  the  date  of  the  exchange  of  rati- 
fications of  this  treaty,  shall  meet  at  the  port  of  San  Diego 
and  proceed  to  run  and  mark  the  said  boundary  in  its  whole 
course  to  the  mouth  of  the  Rio  Bravo  del  Norte.  They  shall 
keep  journals  and  make  out  plans  of  their  operations;  and 
the  result  agreed  upon  by  them  shall  be  deemed  a  part  of  this 
Treaty,  and  shall  have  the  same  force  as  if  it  were  inserted 
therein.  The  two  governments  will  amicably  agree  regard- 
ing what  may  be  necessary  to  these  persons,  and  also  as  to 
their  respective  escorts,  should  such  be  necessary. 

The  boundary  line  established  by  this  article  shall  be  re- 
ligiously respected  by  each  of  the  two  republics,  and  no 
change  shall  ever  be  made  therein,  except  by  the  express  and 
free  consent  of  both  nations,  lawfully  given  by  the  general 
government  of  each,  in  conformity  with  its  own  constitution. 

ARTICLE  VI. 

The  vessels  and  citizens  of  the  United  States  shall,  in  all 
time,  have  a  free  and  uninterrupted  passage  by  the  Gulf  of 
California,  and  by  the  river  Colorado  below  its  confluence 
with  the  Gila,  to  and  from  their  possessions  situated  north  of 
the  boundary  line  defined  in  the  preceding  article;  it  being 
understood  that  this  passage  is  to  be  by  navigating  the  Gulf 
of  California  and  the  river  Colorado,  and  not  by  land,  with- 
out the  express  consent  of  the  Mexican  government. 

If,  by  the  examinations  which  may  be  made,  it  should  be 
ascertained  to  be  practicable  and  advantageous  to  construct  a 
road,  canal,  or  railway,  which  should  in  whole  or  part  run 
upon  the  river  Gila,  or  upon  its  right  or  its  left  bank,  within 
the  space  of  one  marine  league  from  either  margin  of  the 
river,  the  governments  of  both  republics  will  form  an  agree- 
ment regarding  its  construction,  in  order  that  it  may  serve 
equally  for  the  use  and  advantage  of  both  countries. 


ARTICLE  VII. 
The  river  Gila,  and  the  part  of  the  Rio  Bravo  del  Norte 
lying  below  the  southern  boundary  of  New  Mexico  being, 


717  TREATY    OF    GUADALUPE    HIDALGO.  Art.  VIII 

agreeably  to  the  fifth  article,  divided  in  the  middle  between 
the  two  republics,  the  navigation  of  the  Gila  and  of  the  Bravo 
below  said  boundary  shall  be  free  and  common  to  the  vessels 
and  citizens  of  both  countries ;  and  neither  shall,  without  the 
consent  of  the  other,  construct  any  work  that  may  impede  or 
interrupt,  in  whole  or  in  part,  the  exercise  of  this  right ;  not 
even  for  the  purpose  of  favoring  new  methods  of  navigation. 
Nor  shall  any  tax  or  contribution,  under  any  denomination 
or  title,  be  levied  upon  vessels  or  persons  navigating  the  same, 
or  upon  merchandise  or  effects  transported  thereon,  except  in 
the  case  of  landing  upon  one  of  their  shores.  If,  for  the  pur- 
pose of  making  the  said  rivers  navigable,  or  for  maintaining 
them  in  such  state,  it  should  be  necessary  or  advantageous  to 
establish  any  tax  or  contribution,  this  shall  not  be  done  with- 
out the  consent  of  both  governments. 

The  stipulations  contained  in  the  present  article  shall  not 
impair  the  territorial  rights  of  either  republic  within  its 
established  limits. 

ARTICLE  VIII. 

Mexicans  now  established  in  territories  previously  belong- 
ing to  Mexico,  and  which  remain  for  the  future  within  the 
limits  of  the  United  States,  as  defined  by  the  present  Treaty, 
shall  be  free  to  continue  where  they  now  reside,  or  to  remove 
at  any  time  to  the  Mexican  Republic,  retaining  the  property 
which  they  possess  in  the  said  territories,  or  disposing  thereof, 
and  removing  the  proceeds  wherever  they  please,  without 
their  being  subjected,  on  this  account,  to  any  contribution, 
tax,  or  charge  whatever. 

Those  Avho  shall  prefer  to  remain  in  the  said  territories, 
may  either  retain  the  title  and  rights  of  Mexican  citizens,  or 
acquire  those  of  citizens  of  the  United  States.  But  they  shall 
be  under  the  obligation  to  make  their  election  within  one  year 
from  the  date  of  the  exchange  of  ratifications  of  this  Treaty ; 
and  those  who  shall  remain  in  the  said  territories  after  the 
expiration  of  that  year,  without  having  declared  their  inten- 
tion to  retain  the  character  of  Mexicans,  shall  be  considered 
to  have  elected  to  become  citizens  of  the  United  States. 

In  the  said  territories,  property  of  every  kind,  now  belong- 
ing to  Mexicans  not  established  there,  shall  be  inviolably  re- 


Arts.  IX-XI      TREATY   OF  GUADALUPE   HIDALGO.  718 

spected.  The  present  owners,  the  heirs  of  these,  and  all 
Mexicans  who  may  hereafter  acquire  said  property  by  con- 
tract, shall  enjoy,  with  respect  to  it,  guarantees  equally  ample 
as  if  the  same  belonged  to  citizens  of  the  United  States. 

ARTICLE  IX. 
The  Mexicans  who,  in  the  territories  aforesaid,  shall  not 
preserve  the  character  of  citizens  of  the  Mexican  Republic, 
conformably  with  what  is  stipulated  in  the  preceding  article, 
shall  be  incorporated  into  the  Union  of  the  United  States  and 
be  admitted  at  the  proper  time  (to  be  judged  of  by  the  Con- 
gress of  the  United  States)  to  the  enjoyment  of  all  the  rights 
of  citizens  of  the  United  States  according  to  the  principles 
of  the  constitution ;  and  in  the  meantime  shall  be  maintained 
and  protected  in  the  free  enjoyment  of  their  liberty  and  prop- 
erty, and  secured  in  the  free  exercise  of  their  religion  without 
restriction. 

ARTICLE  X. 

[Stricken  out.] 

ARTICLE  XI. 

Considering  that  a  great  part  of  the  territories  which,  by 
the  present  treaty,  are  to  be  comprehended  for  the  future 
wdthin  the  limits  of  the  United  States,  is  now  occupied  by 
savage  tribes,  who  will  hereafter  be  under  the  exclusive  con- 
trol of  the  government  of  the  United  States,  and  whose  incur- 
sions within  the  territory  of  Mexico  would  be  prejudicial  in 
the  extreme,  it  is  solemnly  agreed  that  all  such  incursions 
shall  be  forcibly  restrained  by  the  government  of  the  United 
States  whensoever  this  may  be  necessary ;  and  that,  when  they 
cannot  be  prevented,  they  shall  be  punished  by  the  said  gov- 
ernment, and  satisfaction  for  the  same  shall  be  exacted — all 
in  the  same  way,  and  with  equal  diligence  and  energy,  as  if 
the  same  incursions  were  meditated  or  committed  within  its 
own  territory  against  its  own  citizens. 

It  shall  not  be  lawful,  under  any  pretext  whatever,  for  any 
inhabitant  of  the  United  States  to  purchase  or  acquire  an}^ 
Mexican,  or  any  foreigner  residing  in  Mexico,  who  may  have 
been  captured  by  Indians  inhabiting  the  territory  of  either 


719  TREATY   OF   GUADALUPE   HIDAU30.  Art.  XI 

of  the  two  republics,  nor  to  purchase  or  acquire  horses,  mules, 
cattle,  or  property  of  any  kind,  stolen  within  Mexican  terri- 
tory by  such  Indians. 

And  in  the  event  of  any  person  or  persons,  captured  within 
Mexican  territory  by  Indians,  being  carried  into  the  territory 
of  the  United  States,  the  government  of  the  latter  engages 
and  binds  itself  in  the  most  solemn  manner,  so  soon  as  it  shall 
know  of  such  captives  being  within  its  territory,  and  shall  be 
able  so  to  do,  through  the  faithful  exercise  of  its  influence 
and  power,  to  rescue  them,  and  return  them  to  their  country, 
or  deliver  them  to  the  agent  or  representative  of  the  Mexican 
government.  The  Mexican  authorities  will,  as  far  as  prac- 
ticable, give  to  the  government  of  the  United  States  notice 
of  such  captures;  and  its  agent  shall  pay  the  expenses  in- 
curred in  the  maintenance  and  transmission  of  the  rescued 
captives ;  who,  in  the  meantime,  shall  be  treated  with  the 
utmost  hospitality  by  the  American  authorities  at  the  place 
where  they  may  be.  But  if  the  government  of  the  United 
States,  before  receiving  such  notice  from  Mexico,  should  ob- 
tain intelligence,  through  any  other  channel,  of  the  existence 
of  Mexican  captives  within  its  territoiy,  it  will  proceed  forth- 
with to  effect  their  release  and  delivery  to  the  Mexican  agent 
as  above  stipulated. 

For  the  purpose  of  giving  to  these  stipulations  the  fullest 
possible  efficacy,  thereb}'  affording  the  security  and  redress 
demanded  by  their  true  spirit  and  intent,  the  government  ot 
the  United  States  will  now  and  hereafter  pass,  without  un- 
necessary delay,  and  always  vigilantly  enforce,  such  laws  as 
the  nature  of  the  subject  may  require.  And  finally,  the 
sacredness  of  this  obligation  shall  never  be  lost  sight  of  by 
the  said  government  when  providing  for  the  removal  of  the 
Indians  from  any  portion  of  the  said  territories,  or  for  its 
being  settled  by  citizens  of  the  United  States ;  but  on  the  con- 
trary, special  care  shall  then  be  taken  not  to  place  its  Indian 
occupants  under  the  necessity  of  seeking  new  homes,  by  com- 
mitting those  invasions  which  the  United  States  have  solemnly 
obliged  themselves  to  restrain. 


Arts.  XII-XIV      TREATY   OF   GUADALUPE   HIDALGO.  720 

AKTICLE  XII. 

In  consideration  of  the  extension  acquired  by  the  bounda- 
ries of  the  United  States,  as  defined  in  the  tifth  article  of  the 
present  Treaty,  the  government  of  the  United  States  en- 
gages to  pay  to  that  of  the  Mexican  Republic  the  sum  of  fif- 
teen millions  of  dollars. 

Immediately  after  this  Treaty  shall  have  been  duly  rati- 
fied by  the  government  of  the  Mexican  Republic,  the  sum  of 
three  millions  of  dollars  shall  be  paid  to  the  said  government 
by  that  of  the  United  States,  at  the  city  of  Mexico,  in  the 
gold  or  silver  coin  of  Mexico.  The  remaining  twelve  millions 
of  dollars  shall  be  paid  at  the  same  place,  and  in  the  same 
coin,  in  annual  installments  of  three  millions  of  dollars  each, 
together  with  interest  on  the  same  at  the  rate  of  six  per  cen- 
tum per  annum.  This  interest  shall  begin  to  run  upon  the 
whole  sum  of  twelve  millions  from  the  day  of  the  ratification 
of  the  present  Treaty  by  the  Mexican  government,  and  the 
first  of  the  installments  shall  be  paid  at  the  expiration  of  one 
year  from  the  same  day.  Together  with  each  annual  install- 
ment, as  it  falls  due,  the  whole  interest  accruing  on  such 
installment  from  the  beginning  shall  also  be  paid. 

ARTICLE  XIII. 

The  United  States  engage,  moreover,  to  assume  and  pay  to 
the  claimants  all  the  amounts  now  due  them,  and  those  here- 
after to  become  due,  by  reason  of  the  claims  already  liqui- 
dated, and  decided  against  the  Mexican  Republic,  under  the 
conventions  between  the  two  republics  severally  concluded  on 
the  eleventh  day  of  April,  eighteen  hundred  and  thirty-nine, 
and  on  the  thirtieth  day  of  January,  eighteen  hundred  and 
forty-three;  so  that  the  Mexican  Republic  shall  be  absolutely 
exempt  for  the  future  from  all  expense  whatever  on  account 
of  the  said  claims. 

ARTICLE  XIV. 

The  United  States  do  furthermore  discharge  the  Mexican 
Republic  from  all  claims  of  citizens  of  the  United  States,  not 
heretofore  decided  against  the  Mexican  government,  which 
may  have  arisen  previously  to  the  date  of  the  signature  of 


721  TEEATY    OF    GUADALUPE    HIDALGO.  Art.  XV 

this  Treaty;  which  discharge  shall  be  final  and  perpetual, 
whether  the  said  claims  be  rejected  or  be  allowed  by  the  board 
of  commissioners  provided  for  in  the  following  article,  and 
whatever  shall  be  the  total  amount  of  those  allowed. 

ARTICLE  XV. 

The  United  States,  exonerating  Mexico  from  all  demands 
on  account  of  the  claims  of  their  citizens  mentioned  in  the 
preceding  article,  and  considering  them  entirely  and  forever 
cancelled,  whatever  their  amount  may  be,  undertake  to  make 
satisfaction  for  the  same,  to  an  amount  not  exceeding  three 
and  one  quarter  millions  of  dollars.  To  ascertain  the  validity 
and  amount  of  those  claims,  a  board  of  commissioners  shall 
be  established  by  the  government  of  the  United  States,  whose 
awards  shall  be  final  and  conclusive ;  provided  that,  in  decid- 
ing upon  the  validity  of  each  claim,  the  board  shall  be  guided 
and  governed  by  the  principles  and  rules  of  decision  pre- 
scribed by  the  first  and  fifth  articles  of  the  unratified  con- 
vention, concluded  at  the  city  of  Mexico  on  the  twentieth  day 
of  November,  one  thousand  eight  hundred  and  forty-three ; 
and  in  no  case  shall  an  award  be  made  in  favor  of  any  claim 
not  embraced  by  these  principles  and  rules. 

If,  in  the  opinion  of  the  said  board  of  commissioners,  or 
of  the  claimants,  any  books,  records,  or  documents  in  the  pos- 
session or  power  of  the  government  of  the  Mexican  Republic, 
shall  be  deemed  necessary  to  the  just  decision  of  any  claim, 
the  commissioners,  or  the  claimants  through  them,  shall, 
M'ithin  such  period  as  Congress  may  designate,  make  an  appli-. 
cation  in  writing  for  the  same,  addressed  to  the  Mexican 
Minister  for  Foreign  Affairs,  to  be  transmitted  by  the  Sec- 
retary of  State  of  the  United  States ;  and  the  Mexican  gov- 
ernment engages,  at  the  earliest  possible  moment  after  the 
receipt  of  such  demand,  to  cause  any  of  the  books,  records, 
or  documents,  so  specified,  which  shall  be  in  their  possession 
or  power  (or  authenticated  copies  or  extracts  of  the  same), 
to  be  transmitted  to  the  said  Secretary  of  State,  who  shall 
immediately  deliver  them  over  to  the  said  board  of  commis- 
sioners; provided,  that  no  such  application  shall  be  made  by, 

Constitution — 46 


Arts.  XVI-XVIII      TREATY  OF   GUADALUPE  HIDALGO.  722 

or  at  the  instance  of,  any  claimant,  until  the  facts  which  it  is 
expected  to  prove  by  such  books,  records,  or  documents,  shall 
have  been  stated  under  oath  or  affirmation. 

ARTICLE  XVI. 

Each  of  the  contracting  parties  reserves  to  itself  the  entire 
right  to  fortify  whatever  point  within  its  territory  it  may 
judge  proper  so  to  fortify,  for  its  security. 

ARTICLE  XVII. 

The  Treaty  of  amity,  commerce,  and  navigation,  concluded 
at  the  city  of  Mexico  on  the  fifth  day  of  April,  A.  D.  1831, 
between  the  United  States  of  America  and  the  United  Mexi- 
can States,  except  the  additional  article,  and  except  so  far  as 
the  stipulations  of  the  said  Treaty  may  be  incompatible  with 
any  stipulation  contained  in  the  present  Treaty,  is  hereby  re- 
vived for  the  period  of  eight  years  from  the  day  of  the  ex- 
change of  ratifications  of  this  Treaty,  with  the  same  force  and 
virtue  as  if  incorporated  therein;  it  being  understood  that 
each  of  the  contracting  parties  reserves  to  itself  the  right,  at 
any  time  after  the  said  period  of  eight  years  shall  have  ex- 
pired, to  terminate  the  same  by  giving  one  year's  notice  of 
such  intention  to  the  other  party. 

ARTICLE  XVIIL 

All  supplies  whatever  for  troops  of  the  United  States  in 
Mexico,  arriving  at  ports  in  the  occupation  of  such  troops 
previous  to  the  final  evacuation  thereof,  although  subse- 
quently to  the  restoration  of  the  custom-houses  at  such  ports, 
shall  be  entirely  exempt  from  duties  and  charges  of  any  kind ; 
the  government  of  the  United  States  hereby  engaging  and 
pledging  its  faith  to  establish,  and  vigilantly  to  enforce  all 
possible  guards  for  securing  the  revenue  of  Mexico,  by  pre- 
venting the  importation,  under  cover  of  this  stipulation,  of 
any  articles  other  than  such,  both  in  kind  and  in  quantity,  as 
shall  really  be  wanted  for  the  use  and  consumption  of  the 
forces  of  the  United  States  during  the  time  they  may  remain 
in  Mexico.     To  this  end,  it  shall  be  the  duty  of  all  officers 


723  TREATY  OF  GUADALUPE  HIDALGO.  Art.  XIX 

and  agents  of  the  United  States  to  denounce  to  the  Mexican 
authorities  at  the  respective  ports  any  attempts  at  a  fraudu- 
lent abuse  of  this  stipulation  Avhich  they  may  know  of  or 
may  have  reason  to  suspect,  and  to  give  to  such  authorities 
all  the  aid  in  their  power  with  regard  thereto ;  and  every 
such  attempt,  when  duly  proved  and  established  by  sentence 
of  a  competent  tribunal,  shall  be  punished  by  the  confiscation 
of  the  property  so  attempted  to  be  fraudulently  introduced. 

ARTICLE  XIX. 
"With  respect  to  all  merchandise,  effects,  and  property 
whatsoever,  imported  into  ports  of  Mexico  whilst  in  the  occu- 
pation of  the  forces  of  the  United  States,  whether  by  citizens 
of  either  republic,  or  by  citizens  or  subjects  of  any  neutral 
nation,  the  following  rules  shall  be  observed : 

1.  All  such  merchandise,  effects,  and  property,  if  imported 
previously  to  the  restoration  of  the  custom-houses  to  the 
Mexican  authorities,  as  stipulated  for  in  the  third  article  of 
this  Treaty,  shall  be  exempt  from  confiscation,  although  the 
importation  of  the  same  be  prohibited  by  the  Mexican  tariff. 

2.  The  same  perfect  exemption  shall  be  enjoyed  by  all  such 
merchandise,  effects,  and  property,  imported  subsequently  to 
the  restoration  of  the  custom-houses,  and  previously  to  the 
sixty  days  fixed  in  the  following  article  for  the  coming  into 
force  of  the  Mexican  tariff  at  such  ports  respectively;  the 
said  merchandise,  effects,  and  property  being,  however,  at 
the  time  of  their  importation,  subject  to  the  payment  ol 
duties,  as  provided  for  in  the  said  following  article. 

3.  All  merchandise,  effects,  and  property  described  in  the 
two  rules  foregoing  shall,  during  their  continuance  at  the 
place  of  importation,  and  upon  their  leaving  such  place  for 
the  interior,  be  exempt  from  all  duty,  tax,  or  impost  of  every 
kind,  under  whatsoever  title  or  denomination.  Nor  shall 
they  be  there  subjected  to  any  charge  whatsoever  upon  the 
sale  thereof. 

4.  All  merchandise,  effects,  and  property  described  in  the 
first  and  second  rules,  which  shall  have  been  removed  to  any 
place  in  the  interior  whilst  such  place  was  in  the  occupation 


Art.  XX 


TREATY  OF  GUADALUPE  HIDALGO. 


724 


of  the  forces  of  the  United  States,  shall,  during  their  continu- 
ance therein,  be  exempt  from  all  tax  upon  the  sale  or  con- 
sumption thereof,  and  from  every  kind  of  impost  or  contri- 
bution, under  whatsoever  title  or  denomination. 

5.  But  if  any  merchandise,  effects,  or  property  described 
in  the  first  and  second  rules,  shall- be  removed  to  any  place 
not  occupied  at  the  time  by  the  forces  of  the  United  States, 
they  shall,  upon  their  introduction  into  such  place,  or  upon 
their  sale  or  consumption  there,  be  subject  to  the  same  duties 
which,  under  the  Mexican  laws,  they  would  be  required  to 
pay  in  such  cases  if  they  had  been  imported  in  time  of  peace, 
through  the  maritime  custom-houses,  and  had  there  paid  the 
duties  conformably  with  the  Mexican  tariff. 

6.  The  owners  of  all  merchandise,  effects,  or  property  de- 
scribed in  the  first  and  second  rules,  and  existing  in  any  port 
of  Mexico,  shall  have  the  right  to  reship  the  same,  exempt 
from  all  tax,  impost,  or  contribution  whatever. 

With  respect  to  the  metals,  or  other  property,  exported 
from  any  Mexican  port  whilst  in  the  occupation  of  the  forces 
of  the  United  States,  and  previously  to  the  restoration  of  the 
custom-house  at  such  port,  no  person  shall  be  required  by  the 
Mexican  authorities,  whether  general  or  state,  to  pay  any 
tax,  duty,  or  contribution  upon  any  such  exportation,  or  in 
any  manner  to  account  for  the  same  to  the  said  authorities. 


ARTICLE  XX. 

Through  consideration  for  the  interests  of  commerce  gen- 
erally, it  is  agreed,  that  if  less  than  sixty  days  should  elapse 
between  the  date  of  the  signature  of  this  Treaty  and  the  res- 
toration of  the  custom-houses  conformably  with  the  stipula- 
tion in  the  third  article,  in  such  case  all  merchandise,  effects, 
and  property  whatsoever,  arriving  at  the  Mexican  ports  after 
the  restoration  of  the  said  custom-houses,  and  previously  to 
the  expiration  of  sixty  days  after  the  signature  of  this  Treaty, 
shall  be  admitted  to  entry ;  and  no  other  duties  shall  be  levied 
thereon  than  the  duties  established  by  the  tariff  found  in 
force  at  such  custom-houses  at  the  time  of  tbe  restoration  of 
the  same.  And  to  all  such  merchandise,  effects,  and  prop- 
erty, the  rules  established  by  the  preceding  article  shall  apply. 


725  TREATY  OF  GUADALUPE   HIDALGO.      ArtS.  XXI,  XXII 

ARTICLE  XXI. 
If  unhappily  any  disagreement  should  hereafter  arise  be- 
tween the  governments  of  the  two  republics,  whether  with 
respect  to  the  interpretation  of  any  stipulation  in  this  Treaty, 
or  with  respect  to  any  other  particular  concerning  the  politi- 
cal or  commercial  relations  of  the  two  nations,  the  said  gov- 
ernments, in  the  name  of  those  nations,  do  promise  to  each 
other  that  they  will  endeavor,  in  the  most  sincere  and  earnest 
manner,  to  settle  the  differences  so  arising,  and  to  preserve 
the  state  of  peace  and  friendship  in  which  the  two  countries 
are  now  placing  themselves;  using,  for  this  end,  mutual  rep- 
resentations and  pacific  negotiations.  And  if,  by  these 
means,  they  should  not  be  enabled  to  come  to  an  agreement, 
a  resort  shall  not,  on  this  account,  be  had  to  reprisals,  aggres- 
sion, or  hostility  of  any  kind,  by  the  one  republic  against  the 
other,  until  the  government  of  that  which  deems  itself  ag- 
grieved shall  have  maturely  considered,  in  the  spirit  of  peace 
and  good  neighborship,  whether  it  would  not  be  better  that 
such  difference  should  be  settled  by  the  arbitration  of  com- 
missioners appointed  on  each  side,  or  by  that  of  a  friendly 
nation.  And  should  such  course  be  proposed  by  either  party, 
it  shall  be  acceded  to  by  the  other,  unless  deemed  by  it  alto- 
gether incompatible  with  the  nature  of  the  difference,  or  the 
circumstances  of  the  case. 

ARTICLE  XXII. 

If  (which  is  not  to  be  expected,  and  which  God  forbid!) 
war  should  unhappily  break  out  between  the  two  republics, 
they  do  now,  with  a  view  to  such  calamity,  solemnly  pledge 
themselves  to  each  other  and  to  the  world,  to  observe  the  fol- 
lowing rules,  absolutely,  where  the  nature  of  the  subject  per- 
mits, and  as  closely  as  possible  in  all  cases  where  such 
absolute  observance  shall  be  impossible. 

1.  The  merchants  of  either  republic  then  residing  in  the 
other  shall  be  allowed  to  remain  twelve  months  (for  those 
dwelling  in  the  interior),  and  six  months  (for  those  dwelling 
at  the  seaports),  to  collect  their  debts  and  settle  their  affairs; 
during  which  periods,  they  shall  enjoy  the  same  protection. 


Art.  XXII  TREATY  OF  GUADALUPE  HIDALGO.  726 

and  be  on  the  same  footing,  in  all  respects,  as  the  citizens  or 
subjects  of  the  most  friendly  nations;  and,  at  the  expiration 
thereof,  or  at  any  time  before,  they  shall  have  full  liberty 
to  depart,  carrying  off  all  their  effects  without  molestation 
or  hindrance ;  conforming  therein  to  the  same  laws  which  the 
citizens  or  subjects  of  the  most  friendly  nations  are  required 
to  conform  to.  Upon  the  entrance  of  the  armies  of  either 
nation  into  the  territories  of  the  other,  women  and  children, 
ecclesiastics,  scholars  of  every  faculty,  cultivators  of  the 
earth,  merchants,  artisans,  manufacturers,  and  fishermen,  un- 
armed and  inhabiting  unfortified  towns,  villages,  or  places, 
and  in  general  all  persons  whose  occupations  are  for  the  com- 
mon subsistence  and  benefit  of  mankind,  shall  be  allowed  to 
continue  their  respective  employments  unmolested  in  their 
persons.  Nor  shall  their  houses  or  goods  be  burnt  or  other- 
wise destroyed,  nor  their  cattle  taken,  nor  their  fields  wasted 
by  the  armed  force  into  whose  power,  by  the  events  of  war, 
they  may  happen  to  fall;  but  if  the  necessity  arise  to  take 
anything  from  them  for  the  use  of  such  armed  force,  the  same 
shall  be  paid  for  at  an  equitable  price.  All  churches,  hospi- 
tals, schools,  colleges,  libraries,  and  other  establishments  for 
charitable  and  beneficent  purposes,  shall  be  respected,  and  all 
persons  connected  with  the  same  protected  in  the  discharge 
of  their  duties  and  the  pursuit  of  their  vocations. 

2.  In  order  that  the  fate  of  prisoners  of  war  may  be  alle- 
viated, all  such  practices  as  those  of  sending  them  into  dis- 
tant, inclement,  or  unwholesome  districts,  or  crowding  them 
into  close  and  noxious  places,  shall  be  studiously  avoided. 
They  shall  not  be  confined  in  dungeons,  prison-ships,  or  pris- 
ons ;  nor  be  put  in  irons,  or  bound,  or  otherwise  restrained  in 
the  use  of  their  limbs.  The  officers  shall  enjoy  liberty  on 
their  paroles,  within  convenient  districts,  and  have  comfort- 
able quarters ;  and  the  common  soldiers  shall  be  disposed  in 
cantonments,  open  and  extensive  enough  for  air  and  exercise, 
and  lodged  in  barracks  as  roomy  and  good  as  are  provided 
by  the  party  in  whose  power  they  are,  for  its  own  troops. 
But  if  any  officer  shall  break  his  parole  by  leaving  the  dis- 
trict so  assigned  him,  or  any  other  prisoner  shall  escape  from 
the  limits  of  his  cantonment,  after  they  shall  have  been  des- 


727  TREATY  OF  GUADALUPE  HIDALGO.  Art.  XXIII 

ignated  to  him,  such  individuals,  officer,  or  other  prisoner, 
shall  forfeit  so  much  of  the  benefit  of  this  article  as  provides 
for  his  liberty  on  parole  or  in  cantonment.  And  if  any  offi- 
cer so  breaking  his  parole,  or  any  common  soldier  so  escap- 
ing from  the  limits  assigned  him,  shall  afterwards  be  found 
in  arms,  previously  to  his  being  regularly  exchanged,  the  per- 
son so  offending  shall  be  dealt  with  according  to  the  estab- 
lished laws  of  war.  The  officers  shall  be  daily  furnished  by 
the  party  in  whose  power  they  are,  with  as  many  rations,  and 
of  the  same  articles,  as  are  allowed,  either  in  kind  or  by 
commutation,  to  officers  of  equal  rank  in  its  own  army;  and 
all  others  shall  be  daily  furnished  with  such  ration  as  is 
allowed  to  a  common  soldier  in  its  own  service :  the  value  of 
all  which  supplies  shall,  at  the  close  of  the  war,  or  at  periods 
to  be  agreed  upon  between  the  respective  commanders,  be 
paid  by  the  other  party,  on  a  mutual  adjustment  of  accounts 
for  the  subsistence  of  prisoners ;  and  such  accounts  shall  not 
be  mingled  with  or  set  off  against  any  others,  nor  the  balance 
due  on  them  be  withheld,  as  a  compensation  or  reprisal  for 
any  cause  whatever,  real  or  pretended.  Each  party  shall  be 
allowed  to  keep  a  commissary  of  prisoners,  appointed  by  it- 
self, with  every  cantonment  of  prisoners,  in  possession  of  the 
other;  which  commissary  shall  see  the  prisoners  as  often  as 
he  pleases ;  shall  be  allowed  to  receive,  exempt  from  all  duties 
or  taxes,  and  to  distribute,  whatever  comforts  may  be  sent 
to  them  by  their  friends;  and  shall  be  free  to  transmit  his 
reports  in  open  letters  to  the  party  by  whom  he  is  employed. 
And  it  is  declared  that  neither  the  pretense  that  war  dis- 
solves all  treaties,  nor  any  other  whatever,  shall  be  considered 
as  annulling  or  suspending  the  solemn  covenant  contained  in 
this  article.  On  the  contrary,  the  state  of  war  is  precisely 
that  for  which  it  is  provided;  and  during  which  its  stipula- 
tions are  to  be  as  sacredly  observed  as  the  most  acknowledged 
obligations  under  the  law  of  nature  or  nations. 

ARTICLE  XXIII. 

This  treaty  shall  be  ratified  by  the  President  of  the  United 
States  of  America,  by  and  with  the  advice  and  consent  of  the 
Senate  thereof;  and  by  the  President  of  the  Mexican  Repub- 


Art.  XXIII  TREATY  OF  GUADALUPE  HIDALGO.  728 

lie,  with  the  previous  approbation  of  its  General  Congress; 
and  the  ratifications  shall  be  exchanged  in  the  city  of  Wash- 
ington, or  at  the  seat  of  government  of  INIexico,  in  four 
months  from  the  date  of  the  signature  hereof,  or  sooner  if 
practicable. 

In  faith  whereof,  we,  the  respective  plenipotentiaries,  have 
signed  this  treaty  of  peace,  friendship,  limits,  and  settlement ; 
and  have  hereunto  affixed  our  seals  respectively.  Done  in 
quintuplicate  at  the  city  of  Guadalupe  Hidalgo,  on  the  sec- 
ond day  of  February  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  forty-eight. 

N.  P.  TRIST,  [l.  s.] 

LUIS  G.  CUEVAS,  [l.  s.] 

BERNARDO   COUTO,  [l.  s.] 

MIGL.  ATRISTAN,  [l.  s.] 

And  whereas  the  said  treaty,  as  amended,  has  been  duly 
ratified  on  both  parts,  and  the  respective  ratifications  of  the 
same  were  exchanged  at  Queretaro  on  the  thirtieth  day  of 
May  last,  by  Ambrose  H.  Sevier  and  Nathan  Clifford,  Com- 
missioners on  the  part  of  the  Government  of  the  United 
States,  and  by  Senor  Don  Luis  de  la  Rosa,  Minister  of  Rela- 
tions of  the  Mexican  Republic,  on  the  part  of  that  Govern- 
ment : 

Now,  therefore,  be  it  known,  that  I,  James  K.  Polk,  Presi- 
dent of  the  United  States  of  America,  have  caused  the  said 
Treaty  to  be  made  public,  to  the  end  that  the  same  and  every 
clause  and  article  thereof  may  be  observed  and  fulfilled  with 
good  faith  by  the  United  States  and  the  citizens  thereof. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and 
caused  the  seal  of  the  United  States  to  be  affixed. 

Done  at  the  city  of  Washington,  this  fourth  day  of  July, 
one  thousand  eight  hundred  and  forty-eight,  and  of  the  Inde- 
pendence of  the  United  States  the  seventy-third. 

[l.  s.]  JAMES  K.  POLK. 

By  the  President: 

James  Buchanan, 

Secretary  of  State. 


729  TREATY   OF  GUADALUPE  HIDALGO.  Arts.  1,  V 

ARTICLES    REFERRED     TO    IN    THE     FIFTEENTH 
ARTICLE  OF  THE  PRECEDING  TREATY. 

First  and  Fifth  Articles  of  the  unratified  Convention  between 
the  United  States  and  the  Mexican  Bepuhlic  of  the  20th 
Nov.  1843. 

ARTICLE  I. 

All  claims  of  citizens  of  the  Mexican  Republic  against  the 
government  of  the  United  States  which  shall  be  presented  in 
the  manner  and  time  hereinafter  expressed,  and  all  claims 
of  citizens  of  the  United  States  against  the  government  of 
the  Mexican  Republic,  which  for  whatever  cause  were  not 
submitted  to,  nor  considered  nor  finally  decided  by,  the  com- 
mission, nor  by  the  arbiter  appointed  by  the  convention  of 
1839,  and  which  shall  be  presented  in  the  manner  and  time 
hereinafter  specified,  shall  be  referred  to  four  commissioners, 
who  shall  form  a  board,  and  shall  be  appointed  in  the  follow- 
ing manner,  that  is  to  say:  Two  commissioners  shall  be  ap- 
pointed by  the  President  of  the  Mexican  Republic,  and  the 
other  two  by  the  President  of  the  United  States,  with  the 
approbation  and  consent  of  the  senate.  The  said  commis- 
sioners, thus  appointed,  shall,  in  presence  of  each  other,  take 
an  oath  to  examine  and  decide  impartially  the  claims  sub- 
mitted to  them,  and  which  may  lawfully  be  considered,  ac- 
cording to  the  proofs  which  shall  be  presented,  the  principles 
of  right  and  justice,  the  law  of  nations,  and  the  treaties 
between  the  two  republics. 

ARTICLE  V. 

All  claims  of  citizens  of  the  United  States  against  the  gov- 
ernment of  the  Mexican  Republic,  which  were  considered  by 
the  commissioners,  and  referred  to  the  umpire  appointed 
under  the  convention  of  the  eleventh  April,  1839,  and  which 
were  not  decided  by  him,  shall  be  referred  to,  and  decided  by, 
the  umpire  to  be  appointed,  as  provided  by  this  convention, 
on  the  points  submitted  to  the  umpire  under  the  late  conven- 
tion, and  his  decision  shall  be  final  and  conclusive.  It  is 
also  agreed,  that,  if  the  respective  commissioners  shall  deem 
it  expedient,  they  may  submit  to  the  said  arbiter  new  argu- 
ments upon  the  said  claims. 


INDEX. 

(731) 


INDEX. 


A 


Art. 


Sec. 

Page 

22 

240 

16 

285 

2 

293 

3 

295 

9 

334 

12 

588 

ABANDONED  CHILDREN— state  may  provide  for 4 

ABSENCE — of  governor,  duties  devolve  on  lieutenant- 
governors    5 

of  chief  justice,  selection  pro  tempore 6 

of  judge   from   state 6 

of  judicial  officer  when  a  forfeiture  of  office 6 

of  citizen,  on  public  business  not  to  affect  residence. 20 

ACADEMY   OF  SCIENCES.     See   California   Academy 
of  Sciences. 

ACCOUNT — of    receipts    and    expenditures    to   be   pub- 
lished       4 

ACCOUNTABILITY— of  municipal  officers   11 

ACCUSED— rights    of 1 

ACQUISITION  OF  PROPERTY— rights  of  aliens 1 

ACT  OF  LEGISLATURE— to  embrace  but  one  subject.   4 

ACTION — corporations  may  sue  and  be  sued 12 

where  may  be  sued  12 

limitation  of,  special  legislation  prohibited 4 

real  where  to  be  commenced  6 

against      transportation      companies      for      excessive 

charges    . 12 

unaffected  by  adoption  of  Constitution 22 

See  Civil  Action. 

ADJOURNMENT    OF    LEGISLATURE— for    want    of 

quorum    4 

restriction   on  right   of   4 

loss  of  per  diem  by   4 

effect  of  on  passage  of  bills  4 

power  of  governor  on  disagreement   5 

ADJUSTMENT   OF  POPULATION— in   legislative   dis- 
tricts       4 

ADMISSION   TO  UNIVERSITY 9 

ADOPTION    OF    CHILDREN— special    legislation    pro- 
hibited        4       25       254 

AFFIDAVIT — required  of  justice  or  judge  on  drawing 

salary     6       24       349 

to  sustain  issue  of  warrants 1       19       133 

(733) 


22 

237 

5 

371 

13 

147 

17 

181 

24 

243 

4 

486 

14 

491 

25 

252 

5 

315 

22 

500 

2 

601 

8 

227 

14 

230 

14 

230 

16 

231 

11 

284 

6 

225 

9 

360 

734  INDEX. 

Art 
AFFIRMATION— See  Oath. 

AGED  PERSONS — state  may  provide  for  support  of . . .   4 

AGENT — when  not  to  receive  extra  compensation 4 

of   transportation   company,   restrictions   as   to    inter- 
ests        12 

AGREEMENT     FOR     EXTRA     COMPENSATION— to 
public  officials,  void   4 

AGRICULTURAL  COLLEGE— provisions  regarding,...   9 

AGRICULTURAL  SOCIETY— how  to  elect  officers 12 

AID   FROM   PUBLIC   FUNDS— to   private   institutions 

prohibited    4 

to  religious   sects   prohibited    4 

ALAMEDA — two  superior  court  judges  to  be  elected.  .   6 

salary  of  judge  of  superior  court   6 

bonded  indebtedness  for  Panama-Pacific  International 
Exposition    11 

ALIENATION  OF  FRANCHISE— not   to   relieve   from 
liability  . ;. 12 

ALIENS— right  of   1 

protection   from    19 

foreigners  ineligible  to  citizenship  declared  dangerous.  19 

their  immigration  to  be  discouraged 19 

provision  for  their  removal    19 

AMENDATORY  ACTS— title  to   4 

AMENDMENTS  TO  BILLS— how  made 4 

to  be   printed    4 

to  laws,  how  enacted   4 

to  city  charter,  how  made 11 

AMENDMENTS  TO  CONSTITUTION— as  to  intoxicat- 
ing liquors 1 

may  be  proposed  in  either  house 18 

two-thirds  vote  required    IS 

to  be  submitted  to  vote  of  people  18 

several,  to  be  voted  on  separately 18 

if  ratified  by  majority,  part  of  Constitution 18 

AMERICAN  UNION— state  part  of 1 

APPEAL — district   courts   of    6 

APPELLATE  JURISDICTION— of   supreme   court   and 

appellate   courts    6 

of  superior  court 6 


Sec. 

Page 

22 

237 

32 

274 

18 

496 

32 

274 

9 

360 

11 

489 

22 

237 

30 

270 

6 

331 

17 

342 

18       460 


10       489 


17 

181 

1 

580 

4 

581 

4 

581 

4 

581 

24 

243 

15 

230 

15 

230 

24 

243 

8 

403 

26a 

189 

577 

577 

577 

577 

577 

3 

132 

4 

296 

4 

296 

5 

315 

1 

364 

3 

364 

3 

364 

14 

458 

4 

585 

6 

225 

7 

333 

10 

535 

16 

231 

16 

231 

29 

270 

30 

270 

34 

276 

INDEX.  735 

Art.      Sec.    Page 
APPOINTMENT  AND  REMOVAL— of  board  of  prison 

directors     10 

of  warden  and  clerk  10 

of  subordinate  officers  and  employees   10 

of  inspection  officers,  by  municipal  corporations 11 

to  be  according  to  legislative  direction   20 

APPORTIONMENT— of  members  of  legislature 4 

of  business  of  superior  courts 6 

of  railroad   values  on   assessment 13 

APPROPRIATION  BILL— governor  may  veto  separate 

items   of    4 

duty  of  governor  as  to 4 

what  bill  to  contain   4 

what  prohibited    4 

for  specific  purpose  to  contain  but  one  item 4 

APPROPRIATION— of  water   14         1       561 

APPROPRIATIONS— to   eleemosynary  institutions,  pro 

rata  to  counties,  cities,  and  towns 4 

for  private  corporations  and  institutions 4 

restriction  on  powers  of  legislature    4 

for  support   of  orphans,  etc 4 

by  legislature  and  local  governments,  restriction  on..   4 

ARCHIVES — all  laws,  official  writings,  and  proceedings 

to  be   preserved    4       24       243 

ARMY — standing  not  to  be  kept  1 

exemption  from  taxation,    13 

ARREST — members   of  legislature   privileged   from....   4 
privilege  of  electors  from   2 

ARTIFICIAL     LIGHT— right     of     cities     to     regulate 

charges    11       19       468 

ARTISANS — secured  by  lien  on  property  20 

legislation  to  provide  for  enforcement  of 20 

ASIATIC  COOLIEISM— a  form  of  slavery 19 

forever  prohibited    19 

ASSEMBLAGES  OF  PEOPLE— guaranty  as  to   1 

ASSEMBLY — legislative  power  vested  in   4 

members,  when  and  how  chosen    4 

term   of   office    4 

number  of  members 4 

districts  to  be  formed 4 

vacancies,  how  filled   4 

to  have  sole  power  of  impeachment 4 

compensation  of   4 

attachment  of  district  to  form  congressional  district.  4 

district  not  to  be  divided  4 


22 

237 

22 

237 

22 

237 

22 

237 

30 

270 

12 

147 

U 

525 

11 

229 

2 

193 

15 

589 

15 

589 

4 

581 

4 

581 

10 

141 

2 

223 

3 

224 

6 

225 

5 

224 

6 

225 

12 

229 

17 

233 

23 

242 

27 

269 

27 

269 

736 


INDEX. 


Art. 

ASSEMBLY  DISTRICTS— organization  of   4 

each  to  choose  one  member   4 

to  be  numbered  from  one  to  eighty 4 

ASSESSMENT — appellate  jurisdiction  of  supreme  court.  6 

original  jurisdiction  of  superior  courts 6 

under  township   organization    11 

of  municipal   taxes    11 

for   street   improvements    11 

to  be  in  proportion  to  benefits 11 

of  lands  for  taxes 13 

of  lands  sectionized  and  not  sectionized   13 

mortgages,  deeds  of  trust,  etc.,  deemed  property   ....13 

of  securities,  how  made   13 

of  railroads    13 

equalization   of   13 

property,  where  and  how  assessed 13 

of    railroad    franchises     13 

apportionment  of  railroad  values    13 

securities,  to  whom  assessed 13 

where  to  be  made   13 

of  taxes  to  be  under  general  laws   4 

for  income  tax   13 

for  state  taxes   13 

See  Taxation. 

ASSETS — of  corporations  to  be  entered  on  books 12 

ASSIGNMENT   OF  JUSTICES— to   departments   of   su- 
preme  court    6 

to  district  courts  of  appeal 6 

ASSOCIATE  JUSTICES— subject  to  impeachment 4 

to  be  assigned  to  departments  of  supreme  court 6 

competent  to  sit  in  either    6 

may  freely  interchange 6 

three  necessary  to  transact  business   6 

may  act  in  chambers 6 

four  may  order  hearing  in  bank  6 

when  concurrence  of  four  necessary  to  judgment  ....   6 

to  select  one  to  preside   6 

when  to  select  chief  justice  pro  tempore 6 

time  and  place  of  election   6 

term  of   office    6 

those  first  elected  to  classify  themselves 6 

two  to  be  elected  every  four  years   6 

appointment  by  governor  in  case  of  vacancy 6 

ASSOCIATION — no   appropriations   if   not   under   state 

control    4 

cannot  acquire  rights,  etc.,  by  special   legislation....    4 

included  in  term  "corporations"   12 

where  may  be  sued   12 

subject  to  assessment  for  income  tax   13 


Sec. 

Page 

6 

225 

6 

225 

6 

225 

4 

296 

5 

315 

4 

370 

12 

452 

19 

468 

19 

468 

2 

526 

3 

527 

4 

527 

4 

527 

14 

539 

9 

532 

10 

535 

10 

535 

10 

535 

4 

527 

10 

535 

25 

252 

11 

538 

14 

539 

14 

491 

2 

292 

4 

296 

18 

234 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

3 

295 

3 

295 

3 

295 

3 

295 

3 

295 

22 

237 

25 

252 

4 

486 

16 

493 

11 

539 

INDEX.  737 

Art.  Sec.  Page 
ASYLUMS — not  under  state  control,  not  entitled  to  ap- 
propriations       4  22  237 

ATTACHES  OF  LEGISLATUEE— compensation  of   ...   4  23  242 

ATTAINDEE,  BILLS  OF— prohibited 1  16  175 

ATTORNEY  GENERAL— subject  to  impeachment 4  18  234 

mode  and  time  of  election   5  17  286 

term   of  office    5  17  286 

duties  of  office 5  17  286 

compensation  of   5  19  286 

AYES  AND  NOES — on  urgency  for  passage  of  bill 4  15  230 

to  be  taken  on  each  bill  separately 4  15  230 

when  to  be  entered  on  journal   4  IQ  228 

on  removal   of  justices  or  judges,  to  be  entered  on 

journal     6  10  335 

on  proposed  amendment  to  Constitution   18         1  577 

and  to  be  entered  on  journal 18         1  577 

B 

BAIL — allowed  on  sufficient  sureties   1         6  134 

except  in  capital  offenses,  etc 1         6  134 

excessive  not  to  be  required  1         6  134 

BALLOTS — all  elections  to  be  by  ballot 2         5  196 

for  election  of  new  constitution  to  be  distributed 22         5  603 

BANKING — restriction  on  power  of  legislature   12         5  486 

corporations  may  be  formed  under  general  laws 12          5  486 

only  lawful  money  of  United  States  to  be  circulated.  .12         5  486 

taxation  of  banks    13  14  539 

BASIS — of  representation   4         6  225 

BIENNIAL — sessions  of  legislature   4         2  223 

BILLS — limitation  of  time  for  introduction  of 4         2  223 

now  to  be  put  on  their  passage   4  15  230 

when  passed  to  be  submitted  to  governor   4  16  231 

power  of  governor  to  sign  or  disapprove 4  16  231 

when  to  become  a  law  4  15  231 

passage   over  veto    4  ig  231 

making  appropriation  to  contain  but   one  item    4  34  276 

BILLS  OF  ATTAINDER— prohibited   1  16  175 

BOARD  OF  CANVASSERS— on  new  Constitution,  duty 

of    '.22         8  604 

BOARD  OF  EDUCATION— to  adopt  text-books   9         7  357 

to  control  examination  of  teachers   9         7  357 

and  grant  teachers'  certificates    9          7  357 

restriction  as  to  power  to  incur  debt   H  ig  4(jo 

Constitution — 47 


73S 


INDEX. 


Art. 

BOAED  OF  EQUALIZATION— to  be  elected 13 

term  of  office  and  duties  of  13 

controller,  a  member  ex  officio   13 

authority  of  board 13 

supervisors  to  constitute  county  boards    -.■ 13 

to   equalize   assessment   of   outside    property    of    city, 
city  and  county,  or  municipal  corporation   13 

BOARD    OF    FEEEHOLDERS— election    and    qualifica- 
tion of 11 

duties    of 11 

to  prepare    charter    11 

to  prepare  county  charters   11 

BOARD     OF     SUPERVISORS— when     to     adopt     text- 
books    9 

duty  and  authority  as  to  teachers   9 

election  and  appointment  of  11 

certain  cities  to  have  two  boards 11 

election,  term,  and  classification  of 11 

to  be  a  board  of  equalization  13 

to  fix  water  rates    14 

BONDS— place  of  payment  of  11 

exempt  from  taxation 13 

taxable 13 

BONDS  OF  CORPORATIONS— not  to  be  issued  except 

for  money,  labor,  or  property   12 

when  may  be  increased   12 

BOOKS  OF  RECORD— to  be  kept  by  corporations 12 

what  to  be  entered  on   12 

railroad  commissioners  to  prescribe  form  for  accounts.  12 

BOUNDARY   OF   STATE. 21 

BREACH  OF  THE  PEACE— no  privilege  from  arrest..   4 

BRIBERY — conviction  for  disfranchises   20 

a    disqualification    for    office 20 

compulsory    testimony   in    cases    of 4 

BRIDGES — special  legislation  prohibited   4 

BUSINESS— sex  not  a  disqualification 20 

BUTTE  COUNTY— salary  of  judge  of  superior  court...   G 


Sec. 

Page 

9 

532 

9 

532 

9 

532 

9 

532 

9 

532 

512 


8 

403 

8 

403 

8 

403 

7i 

387 

7 

357 

7 

357 

5 

371 

7 

386 

7 

386 

9 

532 

1 

561 

13J^ 

457 

If 

526 

1 

512 

11 

489 

11 

489 

14 

491 

14 

491 

22 

522 

1 

597 

11 

229 

11 

588 

11 

588 

35 

277 

25 

252 

IS 

595 

17 

312 

c 

CALIFORNIA  ACADEMY  OF  SCIENCES— property  of 

exempt   from  taxation    9       12       363 

CALIFORNIA    SCHOOL    OF    MECHANICAL    ARTS— 

property  of  exempt  from  taxation 9       11       362 

CANAL  COMPANIES— are   common   carriers 12        17       493 

officers  of  not  to  be  interested  in  certain  contracts.  . .  .  12        18       496 


INDEX.  739 

Art.  Sec.  Page 

CAPITAL  OFFENSES— when  not  bailable 1         6  134 

CAPITAL  STOCK    OF    CORPOEATIONS— subject    to 

legislative  control    4  26  267 

to    be    entered    on    books 12  14  491 

CAPITATION  TAX— legislature  mav  provide  for  a  poll 

tax    .' 13  12  538 

or  for  income  taxes    13  11  53S 

CAR  COMPANIES— how  assessed  for  taxation 13  14  539 

CEMETERIES- special   legislation   prohibited 4  25  252 

CENSUS — the   basis    of    adjustment   of   legislative    dis- 
tricts     4         6  225 

CERTIORARI— jurisdiction   of   supreme   court 6         4  296 

of  district  courts   of  apjjeal 6         4  296 

of  superior   court    6         5  315 

CHAMBERS — justice  of  supreme  court  may  act  in 6         2  292 

judges  of  superior  courts  may  act  in 6  14  341 

CHANGE  OF  COUNTY  SEAT— to  be  by  general  laws 

alone     4  25  252 

CHANGE  OF  NAMES— special  legislation  prohibited. . .   4  25  252 

CHANGE  OF  PLACE  OF  TRIAL— in  libel  cases 1         9  140 

in  railroad  cases 

CHANGE  OF  VENUE— special  acts  prohibited 4  25  252 

CHARGE  TO  JURY 6  19  344 

CHARTER — cannot  be  granted  by  special  act 4  25  252 

for  banking  purposes  prohibited 12  5  486 

but  corporations  may  form  under  general  laws 12  5  486 

invalid  for  want  of  organization  under 12  6  487 

not  to  be  extended   12  7  487 

nor  forfeiture  remitted  12  7  487 

business  restricted  to  terms  in 12  9  488 

CHARTER  OF  MUNICIPAL  CORPORATION— how  ob- 
tained      11  8  403 

when  and  how  framed 11  8  403 

board  of  freeholders  mav  prepare 11  8  403 

copy  to  be  deposited  with  secretary  of  state 11  S  403 

and  a   copy  to   be   recorded 11  8  403 

judicial  notice  to  be  taken 11  8  403 

may  be   amended 11  8  403 

approval  of  three-fifths  of  voters  necessary 11  8  403 

how  presented   to  voters 11  8  403 

may  contain  what 11  Si  420 

county  charters 11  7 J  387 

CHIEF  JUSTICE— subject  to  impeachment 4  IS  234 

authority  and  duties  of 6  2  21)2 

time  and  place  of  election 6  3  295 


740 


INDEX. 


Art. 
CHIEF  MAGISTRATE— styled  governor  of  California.   5 

CHILDREN — adoption   and   legitimation   of 4 

abandoned,  state  may  provide  for 4 

legitimation  of 4 

See  Orphans. 

CHINESE— excluded  from   right   of   suffrage 2 

legislature  to  provide  for  protection  against 19 

to  impose   conditions   on   their   residence 19 

to  provide  for  their  removal  from  the  state 19 

corporations   prohibited   from    employing 19 

municipal  corporations  prohibited  from  employing. .  .19 

not  to  be  employed  on  public  works 19 

penalty  to  be  prescribed  for  importing  coolies 19 

their   immigration   to   be   discouraged 19 

power  to  be  delegated  to  cities  and  towns  for  their 

removal    19 

provisions  to  prohibit  their  introduction 19 

and  to  provide  for   protection  against  evils   of  their 

presence    19 

legislature  to  enforce  constitutional  provisions 19 

CHURCH — appropriations  to,   prohibited 4 

CITIZENS— rights   of    1 

privileges    and   immunities    of 1 

right  of   suffrage    2 

not  to  be  deprived  of  life,  liberty,  etc.,  without  due 

process   of   law 1 

CITIZENSHIP— under    Treaty    of    Queretaro 2 

lost,  cannot  be  restored  by  special  act 4 

CITY — to  share  in  appropriations  to  orphans,  etc 4 

may  be  divided  into  congressional  districts. 4 

officers  to  be  governed  by  general  laws  only 4 

what  appropriations  prohibited 4 

mode   of   framing   charter 11 

board  of  freeholders,  when  may  frame  charter 11 

charter,   to  be  published 11 

to   be   submitted    to    vote 11 

if  ratified  to  be  submitted   to   legislature 11 

if  approved,  it  becomes  the  charter 11 

bonds  of,  when  payable 11 

council   to   fix   water   rates 14 

protection  from  alien  paupers 19 

CITY  AND  COUNTY — right  to  share  in  appropriations 

granting  aid 4 

not  to  be  divided  in  forming  congressional  district..   4 

restriction   on   appropriations 4 

governments   may   be   merged   and   consolidated 11 

consolidation   of   and    annexation    of   territory   to.... 11 
outside  property   of,  how  assessed 13 


Sec. 

Page 

1 

279. 

25 

2.54 

22 

240 

25 

253 

1 

190 

1 

580 

1 

580 

1 

580 

2 

581 

3 

581 

3 

581 

4 

581 

4 

581 

4 

581 

4 

581 

4 

581 

4 

581 

30 

270 

9 

140 

21 

184 

1 

190 

13 

147 

1 

190 

25 

253 

22 

237 

27 

269 

25 

254 

30 

270 

8 

403 

8 

403 

8 

403 

8 

403 

8 

403 

8 

403 

13* 

475 

1 

561 

1 

580 

22 

237 

27 

269 

30 

270 

7 

386 

8* 

420 

1 

512 

INDEX.  741 

Art.  Sec.  Page 
CITY,    COUNTY,   OR   TOWNSHIP— right  to    share   in 

appropriations  to  institutions   4  22  237 

prohibited  from  aiding  religious  sect  or  creed 4  30  270 

prohibited  from  loaning  or  giving  its  credit 4  31  270 

inferior  courts   may  be   established  in 6  1  289 

a  subdivision   of   state 11  1  366 

may  organize  under  general  laws 11  6  376 

compensation    of    officers    of 11  9  436 

not  to  be  released  from  share  of  taxes 11  10  439 

commutation    of    taxes    prohibited 11  10  439 

may  enforce  local  police  and  sanitary  regulations.  ..  .11  11  440 

legislature  may  vest  power  of  taxation  in 11  12  452 

bonds    of,   where    payable 11  13i  457 

to  appoint  inspection  officers 11  14  458 

money  collected  to  be  paid  into  treasury 11  16  458 

restriction  as  to  incurring  indebtedness^ 11  18  460 

liabilities    of,    when    void 11  18  460 

property  of  exempt  from  taxation 13  1  512 

rates    of   public   utilities    in 12  23  505 

franchises    for    public    utilities    in 12  23  505 

to  regulate  water  rates 14  1  561 

penalty    for    neglect 14  1  561 

to  be  protected  from  alien  paupers,  etc 19  1  580 

to  have  power  to  remove  the  same 19  4  581 

provisions  for  prohibiting  their  introduction 19  4  581 

CIVIL  ACTIONS— three-fourths  of  jury  may  decide 1  7  135 

jury  may  be  waived 1  7  135 

imprisonment    in    1  15  174 

CIVIL   OFFICERS— trial   of,   for   misdemeanor 4  18  234 

CLAIMS    AGAINST    STATE    OR    LOCAL    GOVERN- 
MENT—not    to   be   allowed 4  32  274 

CLASSIFICATION— of  justices  of  supreme  court 6  3  295 

of  counties     11  5  371 

of  senators   at   election   of   1882 4  5  224 

of  municipal  corporations    11  6  376 

of  state    prison    directors 10  1  364 

of  justices  of  district  courts  of  appeal 6  4  296 

of  superior  judges  in  San  Francisco 6  6  330 

of  supervisors    11  7  386 

CLERICAL  OFFICERS— salary    of    5  19  286 

CLERICAL  SERVICES— limitation  of  compensation...   5  19  286 

CLERK — of  supreme  court,  to  be  appointed 6  21  347 

county  clerk  to  be  ex-officio  clerk  of  courts  of  record  6  14  341 

of  state  prison,  appointment  by  board 10  3  364 

powers  and  duties  of,  to  be  defined 10  5  365 

of  county,  duty  on  election  for  new  Constitution.  ..  .22  6  603 


742  INDEX, 

Art.  Sec.  Page 
COGSWELL     POLYTECHNICAL     COLLEGE— exemp- 
tion of,  from  taxation 9  13  363 

COLLECTION  OF  TAXES— to  be  governed  by  general 

laws    4  25  253 

of   municipal   taxes H  12  452 

COLLEGE— appropriation,   when   prohibited 4  30  270 

COLLEGE    OF  AGEICULTUEE— to   be    supported   and 

maintained   9  9  360 

fund  for  to  be  inviolate 9  9  360 

COMBINATIONS — between     transportation     companies 

prohibited 12  20  497 

COMMANDER-IN-CHIEF— of  militia  5  5  280 

governor  to  continue  as 5  16  285 

COMMISSION  OF  SUPREME  COURT— abolished 6  25  349 

COMMISSIONERS— to  be   elected   or  appointed 20'  4  585 

term   of   office   of 20  16  591 

COMMISSIONS— to  be  sealed  and  signed  by  governor,   5  14  284 

to  militia  officer  to  be  signed  by  governor 8  1  352 

COMMITMENT— for    offenses    1  8  138 

COMMON    CARRIERS— railroads,    canals,    and    trans- 
portation  companies    are 12  17  496 

subject    to   legislative    control 12  17  496 

when  not  to  combine  to  share  earnings 12  20  497 

rates   lowered    cannot   be    raised   without    consent    of 

government     1-^  20  49/ 

discriminating  rates  prohibited 12  21  498 

charges  at  way  stations 12  21  498 

excursion  and  commutation  tickets  may  be  at  special 

rates    12  21  498 

See  Railroad  Companies. 

COMMON    SCHOOLS — not   subject   to   local    or   special 

acts    4  25  254 

source  and  origin  of  funds . 9  4  354 

legislature  to  provide  for  system  of 9  5  355 

system  to  include  primary  and  grammar  schools 9  6  356 

funds  to  be  applied  exclusively  thereto 9  6  356 

no  sectarian  doctrine  to  be  taught 9  8  360 

See     Public     Schools;     School     District;     School 
Funds;  School  Lands. 

COMMUNICATION   OF   GOVERNOR— to   legislature.  .   5  10  283 

COMMUTATION  OF  SENTENCE— power  of  governor.   7  1  350 


INDEX.  743 

Art.  Sec.  Page 

COMMUTATION   OF   TAXES   PEOHIBITED 11  10  439 

COMPENSATION— to  be  first  made  on  taking  property 

for    public    use 1  14  163 

of   members    of   legislature 4  23  242 

in  case  of  adjournment 4  14  230 

extra  cannot  be  granted 4  32  274 

of  state  officers  not  to  be  diminished  or  increased.  ...   5  19  286 

of  clerk   of   supreme    court 6  21  347 

of  justices  and  judges    6  17  342 

of  justices  to   be   paid   by   state 6  17  342 

half  salary  of  judges  to  be  paid  by  state 6  17  342 

and   half  by   counties 6  17  342 

of  board  of  state  prison  directors 10  4  365 

of  county  officers   11  5  371 

of  county,  city  and  town  officers,  not  to  be  increased.il  9  436 

COMPULSORY  PROCESS— accused  entitled  to  procure 

witnesses    1  13  147 

on  failure  of  supervisors  to  fix  water  rates 14  1  561 

CONCURRENCE    NECESSARY    TO    JUDGMENT    IN 

SUPREME   COURT 6  2  292 

in  district  courts  of  appeal 6  4  296 

CONDEMNATION    TO    PUBLIC    USE— See    Eminent 
Domain 

CONDITION  OF  STATE— governor  to  communicate  to 

legislature     5  10  283 

CONDITIONS    IMPOSED    ON    FOREIGN    CORPORA- 
TIONS  12  15  492 

CONFESSION  IN  OPEN  COURT— effect   of 1  20  183 

CONGRESSIONAL  DISTRICTS— how  formed 4  27  269 

of    contiguous    assembly    districts 4  27  269 

assembly  district   not  to  be  divided 4  27  269 

CONSOLIDATION  OF  MUNICIPAL  GOVERNMENTS— 

to  be  under  general  laws 11  7  386 

provisions    applicable    11  7  386 

two  boards  of  supervisors  to  be  elected 11  7  386 

CONSTABLE— local  and  special  acts  prohibited 4  25  252 

CONSTITUTION— of  California  of  1849 

of  California  of   1879 

of  the   United   States 

the  supreme  law 1  3  132 

provisions   mandatory    and   prohibitory 1  22  186 

mode  of  amending     18  1  577 

mode  of  revision    18  2  578 

when  it  takes  effect 22  12  606 

submission  to  vote  of  people 22  2  601 


744 


INDEX. 


Art. 
CONTAGIOUS  DISEASES— protection  from 19 

CONTINGENT   EXPENSES— of   legislature 4 

CONTRACTOR — when   not   to   receive   extra  compensa- 
tion       4 

CONTRACTS— obligations  of  not  to  be  impaired 1 

taxation  of 13 

existing  not  to  be  affected 22 

for  sale  of  stocks  on  margin,  void 4 

to  pay  tax  on  loan  or  its  security,  void 13 

for  coolie  labor,  void 19 

of  marriage,  validity  of 20 

CONTROLLER — subject  to  impeachment 4 

how   chosen    5 

term    of    office 5 

compensation    of    5 

a  member  ex  officio  of  board  of  equalization 13 

to  canvass  returns  of  election  on  revision 18 

CONVENTION      FOR      REVISION— how      and      when 

formed    18 

of  what   to   consist 18 

delegates,  when  to  meet 18 

Constitution  to  be  submitted  to  vote 18 

return  and  proceedings  thereon 18 

executive  to  declare  result 18 

majority  required  to  ratify 18 

proclamation   of   governor 18 

legislature  may  provide  for  expenses  of 20 

CONVICTION — for    crime    deprives    privilege    of    an 
elector   2 

two-thirds  of  senate  to  concur  on 4 

for  embezzlement  to  disqualify  for  office 4 

for  lobbying,  disfranchises    4 

for  offering  bribe  for  election  disqualifies  for  office.. 20 

for  bribery    and   forgery    disfranchises 20 

so  for  malfeasance  in  office  and  for  other  high  crimes. 20 
reprieve  and  pardon  after.  . .  .  ^ 7 

CONVICT  LABOR— to  be  regulated  by  legislature 10 

excluded  from  right   to   office 4 

not  to  be  let  out  by  contract ,...10 

CONVICTS— deprived  of  right  to  vote   2 

cannot  be  restored  to  citizenship  by  special  act 4 

COOLIE  LABOR— contracts  for  void 19 

COOLIEISM — a   form   of   slavery,    prohibited 19 

CO-OPERATIVE  SOCIETIES— elections  of  officers 12 


Sec.    Page 
1        580 

23        242 


32        274 


16 

175 

14 

539 

1 

598 

26 

267 

5 

529 

4 

581 

7 

586 

18 

234 

17 

286 

17 

286 

19 

286 

9 

532 

2 

578 

2 

578 

2 

578 

2 

578 

2 

578 

2 

578 

2 

578 

2 

578 

2 

578 

19 

595 

1 

190 

17 

233 

21 

237 

35 

277 

10 

588 

11 

588 

11 

588 

1 

350 

6 

365 

21 

237 

6 

365 

1 

190 

25 

252 

4 

581 

4 

581 

12 

490 

INDEX.  745 

Art.      Sec.     Page 
COEPORATIONS — conditions    precedent    to    appropria- 
tion  of  right   of  way 1 

when  not  to  receive  state  appropriations 4 

cannot  acquire  rights  by  special  legislation 4 

liability  of  cannot  be  released  by  special  act 4 

sale  of  stock  to  be  controlled  by  legislature 4 

state   cannot   subscribe   for   stock 4 

rates  of  charges  to   be  regulated 4 

cannot  select  persons  to  regulate  charges  for  services 

and  materials  furnished 4 

to  be  formed  under  general  laws 12 

laws  creating  may  be  altered  or  repealed 12 

dues  to  be  secured  by  individual  liability 12 

stockholder's    liability 12 

to  promote  international  expositions 12 

term  includes  associations  and  joint-stock  companies.  12 

may  sue  and  be  sued 12 

where  may  be  sued 12 

for   banking   purposes   prohibited 12 

cannot  circulate  any  but  lawful  money  of  the  United 

States    12 

certain  existing  charters  and  franchises  avoided 12 

existing  charters  not  to  be  extended 12 

nor  can  their  forfeiture  be  remitted 12 

not  to  injure  rights  of  individuals  or  welfare  of  state.  12 

to  be  subject  to  right  of  eminent  domain 12 

police  power  over,  not  to  be  abridged 12 

limited  to  business  authorized  in  charter 12 

restriction  on  tenure  of  real  estate 12 

not  relieved  from  liability  by  lease  or  alienation.  ..  .12 
indebtedness  not  to  be  increased  under  special  act...  12 

restriction  on  issue  of  stock  or  bonds 12 

notice  required  on  increase  of  stock 12 

voting  at  elections  by  stockholders 12 

cumulative    vote    allowed 12 

or   distributive    vote 12 

exception  as  to  co-operative  societies 12 

state  not  to  give  or  loan  its  credit  to 12 

nor  to  subscribe  to  stock  of 12 

to  have  office  within  state 12 

religious   and   benevolent   societies   excepted 12 

books,  etc.,  to  be  open  to  inspection 12 

to    contain    certain    entries 12 

foreign    corporations   not   to   be    favored 12 

where    may   be    sued 12 

place  of  trial  may  be   changed 12 

rights  and  liabilities  of  transportation  companies.  ..  .12 

officers    of,    restrictions    on 12 

free  passes  to  officials  prohibited 12 

fares  and  freights  to  be  regulated 12 


14 

163 

22 

237 

25 

254 

25 

254 

26 

267 

31 

270 

33 

276 

33 

276 

1 

476 

1 

476 

2 

479 

3 

479 

3 

479 

4 

486 

4 

486 

16 

493 

5 

486 

5 

486 

6 

487 

7 

487 

7 

487 

8 

488 

8 

488 

8 

488 

9 

488 

9 

488 

10 

489 

11 

489 

11 

489 

11 

489 

12 

490 

12 

490 

12 

490 

12 

490 

13 

491 

13 

491 

14 

491 

14 

491 

14 

491 

14 

491 

13 

492 

16 

493 

16 

493 

17 

496 

18 

496 

19 

497 

20 

497 

746 


INDEX. 


Art. 
CORPORATIONS— discrimination  in  charges  forlDidden.l2 

forfeiture  of  fraiicliise  for  illegal  water  rates 14 

not  to  exclude  right  of  way  in  harbors 15 

may  be  assessed  for  iucome  tax 13 

taxation    of,   for   state    purposes 13 

prohibited    from    employing    Chinese 19 

penalty  for  introduction  of  coolie  labor 19 

See    Railroad    Companies;    Transportation    Com- 
panies. 

CORRUPTING  LEGISLATORS— a   felony 4 

compulsory  testimony  in  cases  of 4 

COUNTY — right  to  share  in  appropriations 4 

place  of  voting  on   organization 4 

not  to  be  divided  in  forming  congressional  district..   4 

what  appropriations  by  prohibited 4 

prohibited  from  loaning  or  giving  its   credit 4 

a  subdivision  of  the  state 11 

new  counties,  organization   of 11 

liability  for  debts,   on  enlargement  of 11 

governments  of  counties  to  be  uniform 11 

organization    under    townships 11 

legislature  to  establish  system  of  governments 11 

boards   of   supervisors   for 11 

municipal   corporations   controlled   by   general   laws..  11 

city   and   county   governments. 11 

charters    of •  •. H 

compensation    of   officers    of 11 

not  to  be  released  from  state  taxes 11 

may  make  local,  police,  and  sanitary  regulations.  ..  .11 

power  to  levy  taxes 11 

powers   not   to    be   delegated 11 

to  appoint  local  inspection  officers 11 

private  property  not  liable  for  debts  of 11 

moneys   collected   to  be   paid   into  treasury 11 

making  profit  out  of  public  funds  a  felony 11 

restriction   on   power  to   incur    debts 11 

provision  to  be  made  for  payment  of  debts 11 

liabilities,  when   void 11 

property   of   exempt   from   taxation 13 

outside  property  of,  how  assessed 13 

protection    from   alien    paupers,    etc 19 

COUNTY  AND  TOWNSHIP — business  to  be  governed 
by    general    laws 4 

COUNTY    BOARDS    OF    EQUALIZATION— how    con- 
stituted and  duties   of . 13 

COUNTY  CHARTERS— how  framed   and   adopted 11 


Sec. 

Pago 

21 

498 

1 

561 

2 

569 

11 

538 

14 

539 

2 

581 

4 

581 

35 

277 

35 

277 

22 

237 

25 

253 

27 

269 

30 

270 

31 

270 

1 

366 

3 

367 

3 

367 

4 

370 

4 

370 

4 

370 

5 

371 

6 

376 

7 

386 

7^ 

387 

9 

436 

10 

439 

11 

440 

12 

452 

13 

455 

14 

458 

15 

458 

16 

458 

17 

460 

18 

460 

18 

460 

18 

460 

1 

512 

1 

512 

1 

580 

25       253 


532 


7i     387 


INDEX.  747 

COUNTY  CLERKS— ex-officio  clerks  of  courts  of  record  6  li  341 

election   and   appointment    of 11          5  371 

duties  as  to  new  Constitution 22         6  603 

COUNTY  GOVERNMENTS— as  existing,  recognized.  .  .11         1  366 

legislature   to   establish   system   of 11         4  370 

freeholders'   charters  for 11         7J  387 

COUNTY  OFFICERS— to  be  regulated  by  general  laws.   4  25  253 

legislature  to  provide  for  election  of 11         5  371 

may  perform   municipal   functions 11         6  376 

to  pay  count}^  moneys  into  treasury 11  16  458 

making  profit  thereon,  or  using  the  same,  a  felouy.  . .  .11  16  458 

duties  as  to  return  of  votes  on  new  Constitution.  ..  .22         8  604 

COUNTY  SEATS— cannot  be  changed  by  special  legis- 
lation        4  25  253 

proceedings   for  removal   of 11         2  367 

two-thirds  vote  required    , 11         2  367 

proposition  can  be  made  but  once  in  four  years 11         2  367 

COUNTY   SUPERINTENDENTS— election   and    qualifi- 
cation  of 9         3  353 

when  to  adopt  text-books 9         7  357 

COURT    COMMISSIONERS— legislature    may    provide 

for    '. 6  14  341 

and  authorize  to  act  at  chambers 6  14  341 

to  take   depositions,   etc 6  14  341 

allowed    fees    and    perquisites 6  15  341 

COURT  OF  IMPEACHMENT 6         1  289 

COURTS — practice  to  be  governed  by  general  laws....   4  25  252 

inferior,  legislature   may  establish 6         1  289 

except  justices   of  the  peace   and  police   courts   abol- 
ished     22         3  601 

records,  books,  etc.,  to  be  transferred  to  new  courts.  .22         3  601 

power  and  jurisdiction   of  new   courts 22         3  601, 

See  Supreme  Court;  District  Courts  of  Appeal; 
Superior  Court;  Police  Courts;  Justices  of  tho 
Peace. 

COURTS  OF  RECORD— what   are 6  12  340 

county  clerks  as  clerks  of 6  14  341 

judge   of   not  to   practice   law 6  22  348 

CREDIT  OF  STATE— local  and  special  legislation  pro- 
hibited        4  25  253 

not  to  be  loaned    4  31  270 

not  to  be  loaned    12  13  491 

not  to  be  given  nor  loaned 12  13  491 

CREDITS— taxable    AS         1  512 


748  INDEX. 

Art. 
CREED — appropriations   prohibited    4 

CEIME — offenses,   how   prosecuted 1 

impeachment    of    civil    officers 4 

right  of  trial  by  jury 1 

rights  of  party  accused 1 

deprivation  of  right  of  suffrage  on  conviction  for.  ...   2 
laws  to  be  made  to   exclude  from   office,  juries,   etc., 

persons    convicted    20 

existing  prosecutions  for  not  affected 22 

CRIMINAL   CASES — appellate  jurisdiction   of  supreme 

court    and    appellate    courts 6 

original   jurisdiction   of   superior   court 6 

CRIMINAL  PROSECUTION— rights  of  accused 1 

CRUEL  AND  UNUSUAL  PUNISHMENTS— prohibited  1 

CULTIVATED        LANDS— and        uncultivated,        how 
assessed    13 

CUMULATIVE  VOTE— may  be  cast  by  stockholder 12 


Sec. 
30 

Page 
270 

8 
18 

7 
13 

1 

138 

234 
135 
147 
190 

11 
2 

588 
601 

4 
5 

296 
315 

13 

147 

6 

134 

2 

526 

12 

490 

22 

500 

17 

594 

16 

285 

D 

DAMAGE — not  to  be  done  for  public  use  without  com- 
pensation        1       14       163 

DAMAGES — recoverable  for  excessive  charges  for  fares 
and   freights    12 

DAY'S  WORK— on  public  works  eight  hours 20 

DEATH — of  governor,  lieutenant-governor  to  act......   5 

DEBTS — to   be   deducted   from    credits   in   assessments, 

unless  due  to  foreign  creditor 13         1       512 

See  State  Indebtedness. 

DEBTS  OF  STATE— limitation  of  creation   of 16 

DECLARATION    OF    RIGHTS 1 

DEEDS — cannot  be  validated  by   special  legislation...   4 
of   trust,   taxation   of 13 

DEFALCATION— in   office   a   disqualification 4       21       237 

DELEGATES — to  convention  for  revision  of  Constitu- 
tion     18         2 

legislature    may    provide    for    payment    of 20       19 

DELEGATION  OF  POWERS— of  taxation  to  municipal 

corporations    11       12 

to  remove  Chinese 19         4 

DENOMINATIONAL   SCHOOLS— to  receive  no   public 

moneys  9    8 


1 

571 

1 

128 

25 

253 

4 

529 

578 
595 

452 
581 

360 


INDEX,  749 

Art.  Sec.  Page 

DEPAETMENTS— of  government 3  1  198 

of  supreme   court 6  2  292 

each  empowered  to  hear  and  determine 6  2  292 

three  justices  necessary  to  transact  business 6  2  292 

their  concurrence  necessary  to  judgment 6  2  292 

judgment  not  final  till  expiration  of  thirty  days 6  2  292 

DEPOSIT— of   public   funds ^ 11  16 J  459 

DEPOSITIONS— legislature   to   provide   for   taking 1  13  147 

DEPRIVING  OF  LIFE,  LIBERTY  OR  PROPERTY...   1  13  147 

DESCENT— special    legislation    prohibited 4  25  254 

DIFFUSION  OF  KNOWLEDGE— to  be  encouraged 9  1  353 

DIRECTORS    OF   CORPORATIONS— mode    of   election 

of     12  12  490 

right  of  stockholders  to  cumulate  votes 12  12  490 

jointly  and  severally  liable  for  embezzlement  of  em- 
ployees     12  3  479 

DISABILITY — for  ofiice  on  conviction  for  embezzlement 

or    defalcation     4  21  237 

of  governor,  lieutenant-governor  to  act 5  16  285 

by    dueling    20  2  584 

laws  to  be  passed  to  exclude  convicted  persons  from 

oflSce,    juries,    etc 20  11  588 

DISAPPROVAL   OF  BILLS— by   governor 4  16  231 

DISCRIMINATION— in  fares  and  freights  prohibited.  12  21  498 

DISEASES — See       Contagious      Diseases;       Infectious 
Diseases. 

DISFRANCHISEMENT— of  legislator  for  accepting  re- 
ward or  bribe   4  35  277 

for   dueling    20  2  584 

DISQUALIFICATION— of    members    of   legislature    for 

offenses    4  19  235 

of  certain  officers  to  hold  office 4  20  236 

by  embezzlement   and    defalcation 4  21  237 

on  conviction  for  offering  bribes 20  10  588 

by   offering  bribe   to   voters 20  10  588 

sex,  as  to   business   pursuits   not   to   create 20  18  595 

of  members  of  corporations  for  certain  offices 4  33  276 

by    receiving   bribe 4  35  277 

of  lieutenant-governor  for   other   offices 5  15  284 

DISTRIBUTION  OF  POWERS— of  government 3  1  198 

DISTRIBUTIVE  VOTE— on  election  of  officers  of  cor- 
porations      12  12  490 


750 


INDEX. 


Art. 
DISTRICT    ATTOEXEYS— legislature    to    provide    for 
election    of    11 

DISTRICT  COURTS— See   Superior   Courts. 

DISTRICT  COURTS  OF  APPEAL— invested  with  judi- 
cial power 6 

formation    of    districts 6 

sessions   of    6 

jurisdiction  of 6 

removal  of  causes  from <3 

transfer  from   one   district   to   another 6 

election   of  judges 6 

presiding   justice    6 

appointment  of  judge  pro  tempore 6 

dismissal  of  appeals  to   6 

statutes    applicable    to 6 

rules  of  6 

justices,   how   removed 6 

courts    of    record 6 

opinions  of 6 

compensation  of  justices   of 6 

clerk  of ^ 

reporter    of    • 6 

opinion    in    writing 6 

DISTRICTING   STATE— for    representation 4 

for  railroad  purposes 12 

DIVISION    OF    COUNTY — congressional    districts 4 

DIVORCES — special   legislation   prohibited 4 

original  jurisdiction  of  superior  courts 6 

DONATION — :in  aid  of  religious  institutions  prohibited  4 

DRAINAGE  DISTRICT— supervision  of 11 

DUE  PROCESS  OF  LAW— what  is   1 

DUELING— disfranchisement   for    20 

DUES — from  corporation  to  be  secured  by  law 12 

individual    liability    of    stockholders 12 

liability  of  trustees    12 

liability  of  taxation    13 

DUTIES— of  departments  to  be   distinct 3 

of  state   officers    5 

of  clerk   of   supreme   court 6 

of  railroad   commissioners    12 

of  boards  of  equalization 13 


Sec. 


Fage 
371 


1 

289 

4 

296 

4 

296 

4 

296 

4 

296 

4 

296 

4 

296 

4 

296 

4 

296 

4 

296 

4 

296 

4 

296 

10 

335 

12 

340 

16 

342 

17 

342 

21 

347 

21 

347 

24 

349 

6 

225 

22 

500 

27 

269 

25 

253 

5 

315 

30 

270 

13 

455 

13 

147. 

2 

5S4 

2 

479 

3 

479 

3 

479 

1 

512 

1 

198 

18 

286 

14 

341 

22 

500 

9 

532 

INDEX.  751 

^  .      •  Art.  Sec.  Paga- 

EDUCATIOlSr— diffusion  of  knowledge  to  be  encouraged  9         1  353^ 

superintendent   of  public  instruction 9         2  353 

county   superintendents 9         3  353 

school   funds,   how    applied 9  4  354 

common    school    system 9  5  355 

system,   what   to   include 9         6  356 

who  to  adopt  text-books 9         7  357 

sectarianism   prohibited    9         8  360 

university   fund    9  9  360 

colleges   exempt   from   taxation 13  la  525 

See  Common  Schools;  University;  Board  of  Edu- 
cation; School  Fund;  School  Lands;  School 
District. 

ELEEMOSYNARY  INSTITUTIONS  ALONE  CAN  EN- 
JOY PERPETUITIES    20  9  587 

ELECTION    OFFICERS— to    be    governed    by    general 

laws    only    4  25  253 

ELECTIONS— who  may  vote  at 2  1  190 

who   not   entitled   to   vote 2  1  190 

privilege  from  arrest  on  days  of 2  2  193 

exemption    from    militia    duty 2  3  196 

residence,   how   lost 2  4  196 

to  be   by  ballot 2  5  196 

of  members  of  legislature 4  3  224 

of  county  officers,  local  acts  prohibited 4  25  253 

and  place  of  voting  to  be  regulated  by  general  laws.   4  25  253 

by  legislature  to  be  viva  voce 4  28  270 

each    house    to   judge    of    election    and    return    of   its 

members     4  7  227 

to  be   conducted  under  general  laws 4  25  253 

of  governor,  when  and  how   5  2  279 

of  lieutenant-governor    5  15  284 

of  state   officers    5  17  286 

of  justices   of  supreme   court 6  3  295 

of  judges   of   superior  court 6  6  330 

of  superintendent  of  public  instruction 9  2  353 

of  supervisors   of   consolidated    city   governments.  ..  .11  7  386 

term  and  classification  of 11  7  386 

for  ratification  of   city  charter 11  8  403 

of  amendment   to   charter 11  8  403 

of  officers  of  agricultural  society 12  11  4S9 

of  directors  and  trustees  of  corporations 12  12  490 

cumulative  vote  by  stockholders 12  12  490 

or    distributive    vote 12  12  490 

manner  of  voting  of  co-operative  societies 12  12  490 

of  railroad    connnissioners 12  22  500 

of  state   board    of   equalization 13  9  530 

to  be  held  on   creation  of  state   debt 16  1  571 


752 


INDEX. 


Art. 
ELECTIONS — on  amendment  to  Constitution 18 

on   revision   of   Constitution 18 

of    officers    created    by    legislation 20 

offering   bribe   for   a   disqualification   for    office 20 

to  be  regulated  by  laws 20 

plurality  vote  constitutes  a  choice 20 

for  state  officers,  what  years  to  be   held 20 

time  and  manner  of  elections  of  judicial  and  school 
officers     22 

ELECTOR — property  qualification  not  to  be  required..  1 

who  disqualified  to  vote 2 

privilege   from   arrest 2 

from  militia  duty 2 

residence,   how  not  lost 2 

ELECTRIC  COMPANIES— how  assessed  for  taxation..  13 

ELIGIBILITY— of  member  of  legislative  body 4 

for   office    of   governor 5 

of    lieutenant-governor 5 

for  judicial  offices   6 

for  railroad   commissioner 12 

EMBEZZLEMENT— to  deprive  of  privilege  of  elector.   2 

a  disqualification  to  office 4 

a  felony    4 

directors  and  trustees  liable  for 12 

EMINENT  DOMAIN— exercise  of  powers 1 

compensation  to  be  first  secured 1 

damage  to  property,  a  taking 1 

corporations  subject  to  right  of .12 

right  of,  not  to  be  abridged   on  grants  of  corporate 

franchise     12 

franchises  subject  to  right  of 12 

compensation    to    be    fixed    by    railroad    commission, 

when     12 

right  extends  to  all  frontages  on  navigable  waters..  15 

EMPLOYMENT — corporations  prohibited  from  employ- 
ing Chinese    19 

Chinese  not  to  be  employed  on  public  works 19 

minimum    wage     20 

comfort,   health,   safety    and   general   welfare   of   em- 
ployees     20 

ENACTING   CLAUSE— of   statutes 4 

ENDOWMENT— of    university    9 

ENGLISH — the  sole  language  for  publication  of  public 
writings,  etc 4 

ENJOYMENT  OF  PROPERTY— rights  of  foreigners..   1 


Sec. 

Page 

1 

577 

2 

578 

4 

585 

10 

588 

11 

588 

13 

589 

20 

596 

10 

604 

24 

187 

1 

190 

2 

193 

3 

196 

4 

196 

14 

539 

4 

224 

3 

280 

15 

284 

23 

348 

22 

500 

1 

190 

21 

237 

21 

237 

3 

479 

14 

163 

14 

163 

14 

163 

8 

488 

8 

488 

8 

488 

23a 

510 

1 

569 

2 

581 

3 

581 

m 

594 

174 

594 

1 

202 

9 

360 

24 

243 

17 

181 

INDEX.  753 

ENUMERATION    OF    EIGHTS— not    to    affect    others 

reserved     1  23  187 

EQUALIZATION,  BOARD  OF— See  Board  of  Equaliza- 
tion. 

EQUITY — appellate  jurisdiction  of  supreme   court 6  4  296 

original  jurisdiction  in  superior  court 6  5  315 

ESTATES  OF  DECEASED— local  and  special  acts  pro- 
hibited        4  25  253 

when  to    go  into  school  funds 9  4  354 

EVENING  SCHOOLS— may  be  established 9  6  356 

EVIDENCE— in  cases  of  libel 1  9  140 

what  necessary  to  convict  of  treason 1  20  183 

in  cases  of  bribery  and  corrupt  solicitation 4  35  277 

EXAMINATION    OF    TEACHERS— under    control     of 

local  boards   9  7  357 

EXCESSIVE  BAIL  OR  FINES— cannot  be  required  nor 

imposed     1  6  134 

EXCLUSIVE   RIGHTS— cannot   be   granted   by   special 

statute     4  25  252 

EXCURSION     AND     COMMUTATION     TICKETS— at 

special   rates    12  21  498 

EXECUTIVE— a   department   of   government 5  1  279 

power  vested  in  governor 5  1  279 

business    of    5  6  280 

to  see  laws  executed 5  7  280 

to  fill  vacancies  in  office 5  8  280 

state  officers,  election  and  term  of 5  17  286 

compensation  of    5  19  286 

proceedings  to  be  published  in   English  only 4  24  243 

secretary  of  state  to  keep  records  of 5  18  286 

duty  of  on  return  of  election  or  revision  of  Constitu- 
tion      18  2  578 

See  Governor. 

EXECUTIVE  OFFICER— oath  to  be  taken  by 20  3  584 

EXEMPLARY   DAMAGES— on   extortion   in   charge   of 

fares  and  freights    12  22  500 

EXEMPTIONS— from  taxation,  special  acts  prohibited.   4  25  253 

what  property  is    13  1  512 

property  used  for  religious  worship   13  1^  526 

property  of  Leland  Stanford  Junior  University 9  10  361 

property  of  California  School  of  Mechanical  Arts....   9  11  362 

army,  navy,  marine  corps,  or  revenue  service 13  IJ  525 

of  bonds   13  IJ  526 

Constitution — 48 


754  INDEX. 

Art. 

EXEMPTICRSTS— fruit  and  nut-bearing  trees 13 

from  poll  tax,  who  is   13 

of  executive  officer  from  process  5 

of  homestead  from  forced  sale  17 

of  vessels  from  taxation 13 

EXPENDITURES— to  be  published  with  the  laws   4 

EXPENSES  OF  CONSTITUTIONAL  CONVENTION— 
provision  for   20 

EX  POST  FACTO  LAWS— prohibited 1 

EXPRESS  COMPANIES— how  assessed  for  taxation.  .  .13 

EXPULSION   OF  MEMBER— power   of  legislature 4 

EXTENSION  OF  TIME  FOR  COLLECTION  OF  TAX— 
special  acts  prohibited   4 

•  EXTINGUISHMENT     OF    DEBT     OR    LIABILITY— 
special  acts  prohibited 4 

EXTORTION— in  fares  and  freights,  penalty  for 12 

EXTRA    COMPENSATION    TO    PUBLIC    OFFICERS 
PROHIBITED    4 

EXTRA     SESSIONS     OF     LEGISLATURE— how     con- 
vened    4 

on  extraordinary  occasions   5 

F 

FARES   AND   FREIGHTS— power   to   regulate   in  gov- 
ernment     12 

when  lowered  cannot  be  raised  without  its  consent... 12 

discrimination  in  charges  prohibited   12 

exception  as  to  certain  tickets    12 

to  be  regulated  by  a  commission 12 

to  be  published  from  time  to  time 12 

damages  for  excessive  charges   12 

See  Railroad  Commission. 

FEDERAL  CONSTITUTION— the  supreme  law 1 

distinguished  from  state  Constitution 

FEDERAL  OFFICER— not  eligible  to  state  civil  office..  4 
not  eligible  to  office  of  governor   5 

FEES  AND  PERQUISITES  OF  OFFICE  ABOLISHED.   5 

prohibited  to  judicial  officers   6 

exception,  justices  of  peace  and  court  commissioners..    6 

FEES   AND   SALARIES— local   and   special   legislation 

prohibited    4 

of  county  officers   11 


Sec. 

Page 

12i 

538 

12 

538 

6 

280 

1 

574 

4 

529 

22       237 


19 

595 

16 

175 

14 

539 

228 


25       253 


25 
22 


253 
500 


32       274 


223 
283 


20 

497 

20 

497 

21 

498 

21 

498 

22 

500 

22 

500 

22 

500 

132 


20 

236 

12 

284 

19 

286 

15 

341 

15 

341 

25 

254 

5 

371 

INDEX.  755 


Art. 
FELONY— lobbying   declared    to   be    4 

embezzlement  of  public  funds 4 

public   officers   using   or   making   profit   out   of  public 

moneys     11 

legislator  influenced  by  promise  of  reward 4 

original  jurisdiction  of  superior  court   6 

FERRIES — cannot  be  chartered   or  licensed  by  special 
acts    4 

FICTITIOUS  INCREASE  OF  STOCK  ISSUE— void.  ..  12 

FINES — excessive  not  to  be  imposed  1 

cannot  be  remitted  by  special  legislation   4 

imposed  for  excessive  charge  for  fares  and  freights..  12 
already  due  not  affected  by  adoption  of  new  Consti- 
tution      22 

FISCAL  YEAR— to  commence  on  1st  of  July   20 

FISH — right  to  on  public  lands  1 

FISH  AND  GAME  DISTRICTS   4 

FLAGS — authorized,  to  be  carried  by  militia   8 

FORCIBLE  ENTRY  AND  DETAINER— appellate  juris- 
diction in    6 

original   jurisdiction    6 

concurrent  jurisdiction  of  justices  of  the  peace 6 

FOREIGN  CORPORATION— not  to  be  favored 12 

FOREIGNERS— rights  of  enjoyment  of  property 1 

presence  of  certain,  to  be  discouraged   19 

See  Aliens. 

FORFEITURE- cannot  be  remitted  by  special  acts 4 

of  franchise  by  water  companies    14 

of  office  for  taking  free  passes  on  railroads 12 

of  railroad  franchise,  legislature   may  provide  for...  12 
of  existing  franchises  not  to  be  remitted 12 

FORGERY — conviction  for,  a  disfranchisement   20 

FORM— of  oath  of  office   20 

FRANCHISE — exclusive    privileges,    special    legislation 

prohibited    4 

those  not  fully  organized  and  in  business  valid 12 

not  to  be  extended    12 

nor  forfeitures  remitted   12 

subject  to  right  of  eminent  domain   12 

lease  or  alienation  not  to  relieve  from  liability 12 

as  property  liable  to  taxation   13 

power  of  taxation  not  to  be  surrendered  in  grant  of.. .13 
legislature   may  provide  for  forfeiture  of    12 


Sec. 

Page 

35 

277 

21 

237 

17 

460 

35 

277 

5 

315 

25 

254 

11 

489 

6 

134 

25 

254 

22 

500 

2 

601 

5 

586 

25 

188 

25i 

266 

2 

352 

4 

296 

5 

315 

11 

335 

15 

492 

17 

181 

4 

581 

25 

254 

1 

561 

19 

497 

22 

500 

7 

487 

11 

588 

3 

584 

25 

252 

6 

487 

7 

487 

7 

487 

8 

488 

10 

489 

1 

512 

6 

531 

22 

500 

756  INDEX, 

Art.  Sec.  Pago 
FRANCHISE — municipalities  may  grant  for  public  utili- 
ties     12  23  505 

taxable    13  1  512 

assessment  of  for  taxes   13  10  535 

water  rights,  when   forfeited    14  1  561' 

right  to  compensation  for  water  supply  a  franchise.  .  .14  2  567 

how  assessed  for  taxes  13  14  539 

FRAUD — as  ground  for  imprisonment  for  debt 1       15       174 

FREE  AND  INDEPENDENT— all  men  are 1         1       128 

FREE  ASSEMBLAGES— guaranteed   1       10       141 

FREE  NAVIGATION— in  harbors   15         2       569 

over  tide  lands   15         3       570 

FREE  PASSES — on  railroads,  prohibitions  as  to 12       19       497 

acceptance  to  work  forfeiture  of  office   12       19       497 

FREE  SCHOOLS— to  be  kept  up  in  each  district 9         5       355 

for  six  months  in  the  year  at  least   9         5       355 

See  Public  Schools;  Common  Schools. 

FREE  SUFFRAGE— privilege  to  be  protected  by  law.  .20       11       588 

FREEDOM  AND  INDEPENDENCE— declaration  of...    1         1       128 

FREEDOM  OF  SPEECH  AND  OF  THE  PRESS— to  be 

preserved    1         9       140 

FREEHOLDERS— See  Board  of  Freeholders. 

FRONTAGES   ON   NAVIGABLE    WATERS— power   of 

state   over    15  1-3  569-570 

FRUIT    AND    NUT-BEARING    TREES— exempt    from 

taxation    13       12  J     538 

G 

GAS  AND  WATER— right  of  cities  to  regulate  charges.  11       19       468 

GAS  CORPORATIONS— legislation  to  regulate  charges.   4 

right  to  introduce  light  in  cities    11 

right  of  cities  to  regulate  charges 11 

may  use  streets  for  laying  down  pipes 11 

how  assessed  for  taxation   13 

GENERAL  APPROPRIATION  BILL— restrictions  as  to  4 

GENERAL  LAWS — to  have  a  uniform  operation 1 

what  are 11 

GIFT  ENTERPRISES— prohibited   4 

GOVERNMENT— purpose  of  institution  of   1 

right  to  alter  or  reform   1 

powers,  how  distributed 3 


33 

276 

19 

468 

19 

468 

19 

468 

14 

539 

29 

270 

11 

142 

6 

376 

26 

267 

2 

131 

2 

131 

1 

198. 

INDEX. 


757 


Art. 
GOVERNOR — may  convene  legislature  by  proclamation  4 
to  issue    writs    of   election    to    fill    vacancy    in    legis- 
lature     4 

to  approve  all  laws   4 

may  veto  separate  items  in  appropriation  bill   4 

duty  on  return  of  bill  with  objections   4 

subject  to  impeachment   4 

supreme  executive  power,  vested  in 5 

when  and  how  elected   5 

term  of  office  5 

eligibility  and  qualiiScation  to  office 5 

return  of  election  of   5 

when   legislature   to   elect    5 

commander-in-chief  of  militia    5 

to  transact  all  executive  business   5 

may  require  information  from  officers  5 

to  see  that  laws  are  executed 5 

when  to  fill  vacancy  in  office   5 

when  may  convene  legislature  by  proclamation 5 

to  communicate  to  legislature  at  every  session    5 

to  adjourn  legislature  in  certain   contingencies    5 

disability  to  hold  other  office   5 

to  keep  seal  of  state 5 

to  seal  and  sign  public  grants  and  commissions 5 

who  to  act  in  case  of  impeachment 5 

absence  not  to  affect  right  as  commander-in-chief.  ...   5 

compensation  of 5 

ineligible  for  United  States  senator  during  term  ....   5 

to  fill  vacancy  in  justices  of  supreme  court 6 

term  of  appointee    6 

to  fill  vacancy  in  superior  judgeship   6 

may  recommend  removal  of  judicial  officer 6 

to  grant  reprieves,  pardons,  etc 7 

duty  in  cases  of  treason   7 

to  communicate   such   grants  to  legislature 7 

restriction  on  pardoning  power   , 7 

to  commission  officers  of  militia   8 

may  call  out  militia  to  execute  laws   8 

to  appoint  board  of  prison  directors 10 

when   may  remove  them    10 

to  fill  vacancy  in  railroad  commission  12 

to  canvass  returns  on  revision  of  Constitution 18 

to  give  notice  of  election  for  adoption  of  new  Consti- 
tution     22 

duty  on  return  of  vote  thereon 22 

GRAND  JURY — to  be  drawn  at  least  once  a  year   ....   1 
local  and  special  legislation  prohibited   4 

GRANTS — prohibited    to    institutions    not    under    state 

control     4 

of  rights  and  privileges,  special  acts  prohibited 4 


Sec. 

Pago 

2 

223 

12 

229 

16 

231 

16 

231 

16 

231 

18 

234 

1 

279 

2 

279 

2 

279 

3 

280 

4 

280 

4 

280 

5 

280 

6 

280 

6 

280 

7 

280 

8 

280 

9 

283 

10 

283 

11 

284 

12 

284 

13 

284 

14 

284 

16 

285 

16 

285 

19 

286 

20 

288 

3 

295 

3 

295 

6 

330 

10 

335 

350 

350 

350 

350 

352 

352 

364 

364 

22 

500 

2 

578 

4 

602 

9 

604 

8 

138 

25 

252 

22 

237 

2.5 

253 

758 


INDEX. 


Art.  Sec.  Page 

GEANTS— in  and  of  religious  institutions  prohibited.  .  .   4  30  270 

to  be  sealed  and  signed  by  governor   5  14  284 

existing  grants,  when  invalid 12  6  487 

not  to  be  extended   12  7  487 

power  of  taxation  not  to  be  surrendered 13  6  531 

of  land,  restriction  as  to   17  3  575 

GRAVEYARDS— special  legislation  prohibited 4  25  253 

GREAT  SEAL  OF  STATE 5  13  284 

GROWING  CROPS— exempted  from  taxation 13  1  512 

H 

HABEAS    CORPUS— privilege    of   writ   not    to   be   sus- 
pended,  except    1  5  133 

justice  may  issue,  returnable  in  his  discretion 6  4  296 

judges  of  superior  court  may  issue   6  5  315 

HARBOR — frontages    on    navigable    waters,    power    of 

state  over 15  1  569 

subject  to  right  of  eminent  domain   15  1  569 

obstructions  to  navigation  prohibited 15  2  569 

frontages  withheld  from  grant  or  sale 15  3  570 

HEALTH — legislature  to  provide  for  a  state  board  of 

health    20  14  589 

HIGH  CRIMES— impeachment  for 4  18  234 

conviction  for,  a  disfranchisement   20  11  588 

HIGH  SCHOOLS— may  be  established  by  legislature.  ..   9  6  356 

HIGHWAYS — local  and  special  legislation  prohibited.  .   4  25  253 

state  highways    4  36  278 

HOMESTEAD— exemption  from  forced  sale 17  1  574 

HOSPITALS — not    under    state    control,    appropriations 

prohibited    4  22  237 

HOUSES  OF  LEGISLATION— in  certain  cities 11  7  386 

HUSBAND    AND    WIFE— separate    property    to    each 

secured   20  8  586 

HYPOTHECATION     BY     MINOR— special     legislation 

prohibited    4  25  253 

I 

IDIOT— cannot  be  an  elector  2  1  190 

exempt  from  poll  tax 13  12  538 

IMMIGRATION  OF  CHINESE— to  be  discouraged 19  4  581 

IMMUNITIES— of  citizens    1  21  184 

to  corporations,  special  legislation  prohibited 4  25  253 

soldiers  not  to  be  quartered  on  citizens   1  12  147 

from  being  twice  put  in  jeopardy 1  13  147 


Sec. 

Page 

14 

163 

15 

174 

11 

229 

INDEX.  759 

Art. 

IMMUNITIES — from  loss  or  damage  to  property 1 

from  imprisonment  for  debt   1 

of  members  of  legislature  from  arrest 4 

IMPAIEING — obligation  of  contract,  laws  prohibiterl.  .   1       16       175 

IMPANELING    JUEIES— special    and    local    acts    pro- 
hibited     4 

grand  jury  to  be  drawn  at  least  once  a  year 1 

IMPEACHMENT— assembly,  sole  power  of 4 

trial  by  senate 4 

state  oflScers  subject  to    4 

senate  as  court  of   6 

lieutenant-governor,  when  to  act  as  governor   5 

IMPOSTS — appellate  jurisdiction  of  supreme  court....   6 
original  jurisdiction  of  superior  court 6 

IMPRISONMENT— for  debt  not  allowed,  except 1 

of  railroad  official  for  excessive  charges 12 

IMPROVEMENTS— of  city  streets   11 

INALIENABLE  EIGHTS   1 

INCOME  TAXES— legislature  may  provide  for 13 

INCREASE     IN    PER     DIEM     AND     MILEAGE     OF 
LEGISLATORS  PROHIBITED   4 

INCREASE  OF  STOCK— fictitious  issue  void 12 

INDEBTEDNESS    OF    CORPORATIONS— special    acts 

for  relief   prohibited    4 

of  municipal  corporations,  provisions  for  payment  of.  11 

when  void   11 

of  state,  restriction  on  power  of  legislature 16 

INDICTMENT— offenses  may  be  prosecuted  by 1 

for  libel,  where  to  be  tried  1 

pending  unaffected  by  adoption  of  new  Constitution.  .22 

INDIGENT  PERSONS— state  care  over  4 

INELIGIBILITY— to  office  of  governor   5 

of  governor  for  United  States  senate    5 

INFECTIOUS  DISEASES— protection   from    19 

INFERIOR    COURTS— may    be    established    by   legisla- 
tion  6 

jurisdiction  to  be  fixed  by  law 6 

powers,  duties,  and  responsibilities 6 

INFORMATION — offenses  may  be  prosecuted  by   1 

for  libel,  where  to  be  tried   1 

pending,  unaffected  by  adoption  of  new  Constitution.. 22 
from  state  otHcers  to  executive  department 5 

INHERITANCE— rights  of  foreigners 1 

INITIATIVE — power  to  initiate  legislation  reserved   . .   4 


25 

253 

8 

138 

17 

233 

17 

233 

IS 

234 

1 

289 

16 

285 

4 

296 

5 

315 

15 

174 

22 

500 

19 

468 

1 

128 

11 

538 

23 

242 

11 

489 

25 

253 

IS 

460 

IS 

460 

1 

571 

8 

138 

9 

140 

2 

601 

22 

237 

12 

284 

20 

288 

1 

580 

1 

2S9 

13 

340 

13 

340 

8 

138 

9 

140 

2 

601 

6 

280 

17 

181 

1 

202 

760 


INDEX. 


Art.  Sec.    Page 
INJUNCTION — may  be    served   on   holidays   and   non- 
judicial days    6  5  315 

INJUEY  TO  PEOPEETY— compensation  to  be  made 1  14  163 

INSANE  PEESONS— cannot  be  electors   2  1  190. 

exempt  from  poll  tax   13  12  538 

INSOLVENCY — appellate  jurisdiction  in  supreme  court.    6  4  296 

appellate  jurisdiction  in  district  courts  of  appeal 6  4  296 

original  jurisdiction  in  superior  court    6  5  315 

INSPECTION   OFFICEES— to   be    appointed   by   muni- 
cipalities     11  14  458 

INSTALLMENTS— payment  of  taxes  in 13  7  531 

INSTITUTIONS    NOT    UNDEE    STATE    CONTEOL— 

appropriations  prohibited   4  22  237 

INSTEUCTIONS— certain  improper  6  19  344 

certain  proper   6  19  344 

INSTEUMENTS— cannot  be  validated  by  special  acts..   4  25  253 

INSUEANCE — taxation  of  insurance  companies 13  14  541 

INSUEEECTIONS — power  of  governor  to  suppress 8  1  352 

authority  to  contract  debts 16  1  571 

INTELLECTUAL  IMPEOVEMENT— to  be  encouraged.   9  1  353 

INTEEEST — to  be  regulated  by  general  laws  only 4  25  253 

on  state  debt,  provision  to  be  made  for 16  1  571 

INTEEPEETATION— of   state  Constitution vi 

of  terms  in   vii 

[NTOXICATING  LIQUOES— amendment  relating  to.  ..   1  26a  189 

INVASION — suspension  of  writ  of  habeas  corpus 1  5  133 

power  of  governor  to  repel  8  1  352 

authority  to  contract  debts 16  1  571 

INTEENATIONAL  WATEE  SYSTEM 4  31  270 

INVOLUNTAEY  SEEVITUDE  PEOHIBITED 1  18  182 

lEEIGATION    DISTEICTS— stock   in   foreign    corpora- 
tion        4  31  270 

supervision  of   H  13  455 

bonds  of,  when  payable  11  13i  457 

ISSUANCE— of  corporation  stock 12  11  489 

ITEMS — in  general  appropriation  bill   4  29  270 

J 

JEOPAEDY — no  person  to  be  twice  put  in 1  13  147 

JOINT  AND  SEVEEAL— liability  of  stockholders 12  3  479 

JOINT-STOCK   COMPANIES— included   in    term    "cor- 
poration"     12  4  486 


INDEX.  761 

Art.  Sec.  Page 
JOINT      STOCK      COMPANIES— liability      of      stock- 
holders     12  3  479 

may  be  assessed  for  income  taxes 13  11  538 

taxes  upon  for  state  purposes  13  14  539 

JOURNAL— each  house  to  keep   4  10  228 

ayes  and  noes  on  final  passage  of  bills  4  15  230 

disapproval  of  governor  to  be  entered  on 4  16  231 

votes  on  elections  to  be  entered  on   4  28  270 

ayes    and    noes    on    removal    of   justices,    etc.,    to    be 

entered    6  10  335 

on  proposed  amendments  to  be  entered 18  1  577 

JUDGES — of  superior  court  subject  to  impeachment...   4  18  234 

to  be  elected  for  each  superior  court   6  6  330 

may  apportion  business  among  themselves 6  7  333 

may  hold  court  in  any  county   6  8  333 

pro  tempore,  when  may  try  case   6  8  333 

legislature  may  grant  leave  of  absence 6  9  334 

number  of  may  be  increased   6  9  334 

may  be  removed  by  legislature   6  10  335 

cause  to  be  entered  on  journal 6  10  335 

of  inferior  courts,  powers,  duties,  and  responsibilities.   6  13  340 

not  to  receive  fees  or  perquisites 6  15  341 

compensation  of   6  17  342 

ineligible  to  other  office  during  term 6  18  344 

not  to  charge  juries  as  to  matters  of  fact 6  19  344 

prohibited  from  practicing  law   6  22  348 

who  ineligible  to  office  of 6  23  348 

affidavits  on  drawing  salary   6  24  349 

See  Justices  and  Judges;  Justices  of  the  Peace; 
Justices  of  Supreme  Court. 

JUDGMENT— on  impeachment,  extent  of 4  18  234 

not  to  bar  trial  according  to  law 4  18  234 

reversal  of  for  error   6  4J  313 

concurrence  of  supreme  justices  necessary   6  2  292 

vacated  by  order  for  rehearing  in  bank 6  2  292 

when  final   6  2  292 

concurrence  of  four  justices,  when  necessary 6  2  292 

all  decisions  to  be  in  writing  6  2  292 

of  district  courts  of  appeal   6  4  296 

of  superior  court,  effect  of 6  6  330 

JUDICIAL — a  department  of  government   3  1  198 

powers,  where  vested   6  1  289 

supreme  court,  organization  of   6  2  292 

district  courts  of  appeal 6  4  296 

election  of  justices 6  3  295 

jurisdiction  of  supreme  court   6  4  296 

error  resulting  in  miscarriage  of  justice 6  4^  313 

jurisdiction  of  superior  court   6  5  315 


762  INDEX. 

Art.  Sec.  Page 

JUDICIAL — superior  court,  how  constituted 6  6  330 

apportionment  of  business  among  judges 6  7  333 

judges  may  hold  court  in  other  county  6  8  333 

legislature  may  grant  leave  of  absence 6  9  33-1 

may  be  removed  from  office   6  10  335 

justices  of  the  peace  for  cities  and  townships 6  2  292 

what  are  courts  of  record   6  12  340 

jurisdiction   of  inferior  courts    6  13  340 

clerks  and  court  commissioners    6  14  341 

fees  and  perquisites,  to  whom  forbidden   6  15  341 

supreme  court  opinions  to  be  publislied   6  16  342 

compensation  of  justices  and  judges  6  17  342 

justices  and  judges  ineligible  to  other  office 6  18  344 

judges  not  to  charge  jury  on  matters  of  fact 6  19  344 

style  of  process 6  20  347 

reporter  of  supreme  court  to  be  appointed 6  21  347 

judges  not  to  practice  law 6  22  348 

JUDICIAL— eligibility  of  justices  and  judges 6  23  348 

condition  precedent  to  drawing  salary 6  24  349 

JUDICIAL  DECISIONS— publication   of    6  16  342 

JUDICIAL  NOTICE— to  be  taken  of  corporation  char- 
ters     11  8  403 

JUDICIAL    OFFICEE— absence,    when    a   forfeiture    of 

office     6  9  334 

removal  of   6  10  335 

prohibited  from  receiving  fees  and  perquisites 6  15  341 

oath  to  be  taken  by 20  3  584 

JUDICIAL  POWER— where  vested   6  1  289 

of  railroad  commissioners   12  22  500 

JUDICIAL  PEOCEEDINGS— to  be  published  in  English 

only    4  24  243 

JURIES — local  and  special  legislation  prohibited 4  25  253 

not  to  be  charged  as  to  matters  of  fact  6  19  344 

JURISDICTION — of   inferior   courts,   local   and   special 

acts  prohibited   ■!  25  252 

of  supreme  court    6  4  296 

of  district  courts  of  appeal 6  4  296 

of  superior  court   6  5  31o 

of  justices'   court    6  11  335 

of  courts    under    new    Constitution    in    cases    trans- 
ferred  22  3  601 

JUROR — no  religious  restriction   1  4  132 

exclusion,  for  bribery,  forgery,  etc 20  11  588 

JURY — in  civil  cases  and  misdemeanors  number  may  be 

agreed  on   1  7  135 

right  of  trial  by,  secured 1  7  135 


Sec. 

Page 

7 

135 

7 

135 

9 

140 

14 

163 

19 

344 

INDEX.  763 


Art. 

JURY — trial    by,  may  be  waived  by  consent 1 

three-fourths  may  render  verdict 1 

to  determine  law  and  fact  in  libel  cases 1 

to  ascertain  compensation  on  condemnation 1 

not  to  be  chaiged  as  to  matters  of  fact 6 

See  Trial  by  Jury, 

JUSTICES  AND  JUDGES— may  be  removed  by  concur- 
rent  resolution    6 

causes  of  removal  to  be  entered  on  journal 6 

ayes  and  noes  to  be  entered   6 

ineligible  to  other  office 6 

who  eligible  to  office  of   6 

compensation  of   6 

not  to  draw  salary,  unless,  etc 6 

JUSTICES  OF  DISTRICT  COURTS  OF  APPEAL— con- 
sist of  three  justices 6 

power  to  issue  writs   6 

how  elected   6 

term  of  office 6 

salaries   of    6 

how   classified    6 

pro  tempore   6 

how   removed    6 

qualification  of   6 

ineligible  to  office   6 

compensation  of    '. 6 

affidavit  on  drawing  salary 6 

JUSTICES  OF  THE  PEACE— local  and  special  legisla- 
tion prohibited   4 

invested  with  judicial  powers  6 

number  to  be  fixed  by  legislature   6 

concurrent  jurisdiction  in  forcible  entry  and  detainer  6 

and  in  foreclosure  of  liens  in  certain  cases 6 

allowed  fees  and   perquisites    6 

courts  not  abolished  by  new  Constitution   22 

JUSTICES  OF  SUPREME  COURT— powers  and  duties 

of    6 

election  of   6 

authority  to  issue  writs   6 

removal  from  office   6 

compensation  of   G 

ineligible  to  other  office  during  terra   6 

to  appoint  reporter   6 

not  to  practice  law   6 

who  not  eligible  to  office  of 6 

affidavit  to  be  taken  on  drawing  salary  6 


10 

335 

10 

335 

10 

335 

18 

344 

23 

348 

17 

342 

24 

349 

4 

296 

4 

296 

4 

296 

4 

296 

4 

296 

4 

296 

4 

296 

10 

335 

23 

348 

18 

344 

17 

342 

24 

349 

25 

252 

1 

289 

11 

335 

11 

335 

11 

335 

15 

341 

3 

601 

2 

29£ 

3 

295 

4 

296 

10 

355 

17 

342 

18 

344 

21 

347 

22 

348 

23 

348 

24 

349 

764  INDEX. 

■"                                          Art.  Sec.  Page 

LABOR — liens  secured  on  property   20  15  589 

eight    hours    to    constitute    a    day's    work    on    public 

works    20  17  594 

LAND  AND  HOMESTEAD  EXEMPTION 17  1  574 

LAND  MONOPOLY  TO  BE  DISCOURAGED 17  2  575 

LANDS — to  be  assessed  separate  from  improvements.  ..13  2  526 
of  same  quality  and  similarly  situated  to  be  assessed 

at  the  same  value 13  2  526 

sectionized,  how  assessed   13  3  527 

not  sectionized,  legislature  to  provide  for 13  3  527 

fronting  on  harbor,  estuary,  bay,  etc.,  withheld  from 

sale    15  3  570 

holding   large    tracts    uncultivated    is    against    public 

policy    17  2  575 

belonging   to   state   to   be   granted   to   actual   settlers 

only    17  3  575 

LANGUAGE — laws,    officiiil    writings,    etc.,    to    be    pre- 
served and  published  in  English  only 4  24  243 

LAWS — to  have  uniform  operation    1  11  142 

bills  of  attainder  and  ex  post  facto  laws  prohibited..    1  16  175 

or  law  impairing  obligations  of  contract 1  16  175 

enacting  clause    4  1  202 

to  be  passed  by  bill  only 4  15  230 

a  majority  of  members  necessary  to  pass   4  15  230 

must  be  presented  to  governor  for  approval 4  16  231 

how  passed  over  governor's  veto 4  16  231 

how  become  laws  without  approval 4  16  231 

to  be  accompanied  by  statement  of  receipts  and  ex- 
penditures        4  22  237 

governor  to  see  them  faithfully  executed   5  7  280 

to  embrace  but  one  object,  etc 4  24  243 

how  revised  and  amended  4  24  243 

to  be  published  in  English  only 4  24  243 

local   and   special   acts    on   enumerated   subjects   pro- 
hibited     4  25  252 

creating   municipal    corporations    may   be    altered    or 

repealed     11  6  376 

existing,  what  to  remain  in  force 22  1  598 

relating  to  judicial   system  in   force  till   changed  by 

legislature    22  1  598 

LEASE  OF  FRANCHISE— not  to  relieve  from  liability.  12  10  489 

LEAVE  OF  ABSENCE— to  judicial  officers 6  9  334 

LEGAL  DAY'S  WORK 20  17  594 

LEGAL  HOLIDAYS — certain  writs  may  be  served  on.  .   6  5  315 

LEGALIZING  OFFICIAL  ACTS— by  special  laws  pro- 
hibited      4  25  253 


1 

198 

1 

202 

19 

286 

INDEX.  765 

Art.     Sec.    Page 
LEGISLATIVE   ACT— to   embrace  but  on  subject 4       24       243 

See  Legislature;  Laws. 

LEGISLATIVE   COMMITTEE— right   to   inspect   books 

of    corporation     12        14       491 

LEGISLATIVE  DEPARTMENT   3 

power  vested  in  4 

records  to  be  kept  by  secretary  of  state 5 

See  Legislature. 

LEGISLATIVE    GRANTS— powers   of   taxation   cannot 

be   surrendered   in 13         6       531 

LEGISLATIVE  POWER— exercise  of   13         7       531 

delegation  of 13         6       531 

See  Legislature. 

LEGISLATIVE   PROCEEDINGS— on    proposed    amend- 
ments     18 

on  proceedings  to  revise 18 

to  be  published  in  English  only 4 

LEGISLATURE — to  provide  for  taking  depositions 1 

power  to  revoke  special  privileges  and  immunities...  1 

a  department  of  government 3 

of  what  composed    4 

power  vested  in  senate  and  assembly 4 

limitation  of  time  for  introduction  of  bills 4 

sessions   to   be   biennial 4 

members,   when   and  how   elected 4 

term   o.f   office 4 

senators,  when   and  how  chosen 4 

senate,  of  what  composed 4 

number  of  senators  and  of  representatives 4 

senatorial    and    assembly    districts 4 

each  house  to  choose  its  officers 4 

and  judge  of  election   of  its   members 4 

majority  to  constitute  a  quorum 4 

each  house  to  determine  rules  of  proceedings 4 

two-thirds  required  to  expel  a  member 4 

to   keep  and  publish   a  journal 4 

members  to  be  privileged  from  arrest 4 

vacancies,  how  filled 4 

sessions   to   be    open 4 

adjournments,   restriction   on   powers 4 

laws,  how  passed 4 

impeachment    and    trial    by 4 

disqualification   of   member   to   hold   certain   offices...  4 

what  officers  not  eligible  to  membership 4 

to  provide  punishment  of  embezzlement  and  defalca- 
tion       4 

to  what  institutions  aid  may  be  granted 4 


1 

577 

2 

578 

24 

243 

13 

147 

21 

184 

1 

198 

1 

202 

1 

202 

2 

223 

2 

223 

3 

224 

4 

224 

4 

224 

5 

224 

5 

224 

6 

225 

7 

227 

7 

227 

8 

227 

9 

228 

9 

228 

10 

228 

11 

229 

12 

229 

13 

230 

14 

230 

15 

230 

17 

233 

19 

235 

20 

236 

21 

237 

22 

237 

766 


INDEX. 


Art 
LEGISLATURE— moneys,  how  drawn  from  treasury...   4 

per    diem    and    mileage    to    members 4 

officer,  attaches  and  employees 4 

acts  to  embrace  but  one  subject 4 

proceedings  to  be  published  in  English   only 4 

local  or  special  laws  not  to  be  passed 4 

no  power  to  authorize  lotteries  or  gift  enterprises...   4 

vote  on  elections  to  be  viva  voce 4 

general  appropriation  bill,  what  to  contain 6 

appropriations  not  to  be  made  for  sectarian  purposes.   4 
credit  of  state  or  subdivisions  of  state  not  to  given 

or    lent    4 

extra  compensation  for  past  services  prohibited 4 

to  regulate  telegraph   and   gas    companies 4 

to  regulate  storage   and   wharfage    charges.... 4 

special  appropriation  bills,  what  to  contain 4 

lobbying  prohibited,  declared  a  felony.....' 4 

when  to  choose  governor  5 

when  governor  may  convene  by  proclamation 5 

power   when   so   convened 5 

adjournment  by  governor 5 

secretary  of  state  to  keep  records  of 5 

may  abolish  office  of  surveyor-general 5 

power  to  fix  compensation  of  state  officers 5 

may  establish  inferior  courts Q 

cannot   grant  leave   of  absence   to  judicial   officer 6 

may  increase   or   diminish   number   of  judges 6 

may  remove   justice    or   judge 6 

two-thirds  vote   required 6 

to  determine  number  of  justices  of  the  peace 6 

may  prescribe  other  courts  as  courts  of  record 6 

may  fix  jurisdiction  of  inferior  courts 6 

to  provide  for  election  of  supreme  court  clerk 6 

and  fix  duties   and   compensation q 

may  provide  for  appointment  of  court  commissioners.  6 
to  provide  for  publishing  opinions  of  supreme  court.  .    6 

authority   on   conviction   for   treason 7 

restriction    on    power 7 

to  provide  for  organization  and  disciplining  militia..  8 
to  encourage  diifusion  of  knowledge  and  intelligence.  9 
may  authorize  counties  to  unite  in  election  of  school 

superintendent     9 

to  provide  system  of  common  schools 9 

may  establish  high  schools,  normal  schools,  etc 9 

duty  as  to  university  funds 9 

to  classify  board  of  prison  directors 10 

and  prescribe  their  duties 10 

to  regulate     reformatory    institutions 10 

to  direct   auditing  expenses   of  board 10 

to  pass  laws  regulating  their  powers 10 

to  define  powers  and  duties  of  clerk  of  state  prison.  .10 


Sec. 

Page 

22 

237 

23 

242 

23a 

243 

24 

243 

24 

243 

25 

252 

26 

267 

28 

270 

29 

270 

30 

270 

31 

270 

32 

274 

33 

276 

33 

276 

34 

276 

35 

277 

4 

280 

9 

283 

9 

283 

11 

284 

18 

286 

19 

286 

19 

286 

1 

289 

9 

334 

9 

334 

10 

335 

10 

335 

11 

335 

12 

340 

13 

840 

14 

341 

14 

341 

14 

341 

16 

342 

1 

350 

1 

350 

1 

352 

1 

353 

3 

353 

5 

355 

6 

356 

9 

360 

1 

364 

2 

364 

2 

364 

4 

365 

5 

365 

5 

365 

Sec. 

Page 

6 

365 

4 

370 

5 

371 

5 

371 

5 

371 

5 

371 

12 

452 

13 

455 

17 

46!) 

5 

483 

7 

487 

10 

489 

20 

497 

22 

500 

22 

500 

22 

500 

INDEX.  767 

Art. 
LEGISLATURE— to  provide  for  convict  labor. ...... .10 

to  establish  system  of  county  governments 11 

to  provide  for  election  of  county  officers  under  gen- 
eral   laws    11 

and  township  and  municipal  officers 11 

to  prescribe  their  duties  and  term  of  office 11 

and  for  their  strict  accountability 11 

may  levy  taxes   on   municipal  corporations 11 

cannot  delegate   power  to   commissions,   corporations, 

etc 11 

to  provide  for  punishment  for  use  of  public  funds...  11 

cannot  grant   charter  for  banking 12 

not  to  extend  franchise   or  remit  forfeiture 12 

not  to  relieve  corporation  from  liability 12 

vested  with  power  to  regulate  fares  and  freights.  ...12 

may  prescribe  penalty  for  extra  charges 12 

may  remove   railroad    commissioner 12 

may  fill   vacancy   in   commission 12 

may  enforce     forfeiture     of     charter     for     excessive 

charges  of  fares  and  freights 12       23       505 

to  pass  laws  to  enforce  provisions  concerning  corpora- 
tions      12 

may  provide  for  deduction  of  debts  on  assessment. .  .13 
to  provide  for  assessment  of  lands  in  small  tracts...  13 

not  to   surrender   power   of  taxation 13 

may  provide   for   payment   by   installments 13 

may  require   annual   statement   under   oath 13 

may  provide  for  income  taxes    13 

may  provide  for  a   poll   tax 13 

to  carry  out  taxation  provisions 13 

to  fix  penalty  for  failure  to  fix  water  rates 14 

to  regulate  sale  and  rent  of  water 14 

to  provide    against    obstructions    to    navigation 15 

restriction   on  power  to  create   debt 16 

to  protect   homesteads 17 

to  discourage  land  monopoly 17 

to  regulate  grants  of  state  lands 17 

to  protect  from  alien  paupers,  etc 19 

to   provide  for  their  removal 19 

to  pass   police    regulations 19 

to  enforce    provisions   against    Chinese 19 

to  discourage    immigration    of   certain   foreigners.  ..  .19 

to  enforce  removal  of  Chinese , 19 

to  prescribe  penalties  for  introduction  of  coolies.  ...  19 

to  delegate   power   to   remove    Chinese 19 

legislators  to  take   and  subscribe  oath 20 

to  direct   appointment  or  election   of  certain  officers. 20 

to  direct  bringing  suits  against  state 20 

to  regulate   elections   by   general    laws 20 

to  provide  for  institution  of  state  board  of  health.. 20 


24 

511 

1 

512 

3 

527 

6 

531 

6 

531 

6 

531 

11 

538 

12 

538 

13 

539 

1 

561 

1 

561 

2 

569 

1 

571 

1 

574 

2 

575 

3 

575 

1 

580 

1 

580 

1 

580 

2 

581 

4 

581 

4 

581 

4 

581 

4 

581 

3 

584 

4 

585 

6 

SS'rJ 

11 

58S 

14 

5S2 

768  INDEX. 

Art.  Sec.  Page 
LEGISLATURE — to  provide  for  enforcement  of  liens  of 

mechanics,  etc 20  15  589 

may  provide  for   expenses   of   convention 20  19  595 

LEGITIMATION    OF    CHILDREN— special    legislation 

prohibited    4       25       254 

LELAND   STANFORD   JUNIOR   UNIVERSITY— prop- 
erty of  exempt  from  taxation 9 

trusts   for   confirmed 9 

LIABILITY — not  to  be  released  by  special  legislation.  .   4 

of  stockholders  of  corporations 12 

of  franchise   not   to   be   released 12 

of  corporation,  where  may  be  sued 12 

LIBEL — criminal  prosecutions  for   1 

places  of  trial   1 

evidence   in    cases    of 1 

jury  to  judge  of  law  and  fact 1 

LIBERTY  AND   PROPERTY— protection   of 1 

LIBERTY   OF  CONSCIENCE   SECURED 1 

licentiousness    not    excused 1 

LIBERTY  OF  SPEECH— not  to  be  restrained 1 

LICENSE — cannot  be  granted  by  special  legislation...   4 

LICENSE   REGULATIONS 11 

LICK   SCHOOL— See    California   School    of   Mechanical 
Arts. 

LIENS — cannot  be  created  by  special  legislation 4 

on   property,   created    by   taxation 13 

jurisdiction   of   superior   courts 6 

jurisdiction  of  justices  of  the  peace 6 

of    mechanics,    materialmen,    etc 20 

LIEUTENANT-GOVERNOR— liable   to   impeachment..   4 

when  and  how  to  be  elected 5 

term   of   office 5 

to  be  president  of  the  senate 5 

disqualification  for   other  office 5 

when   to   act   as   governor 5 

compensation  of   5 

LIFE,      LIBERTY,      AND      PROPERTY  — inalienable 

rights 1 

not  to  be  deprived  of  without  due  process  of  law.  ...   1 

LIGHT — right   of   cities   to   regulate   charges 11       19       468 

LIMITATION    OF    ACTIONS— special    legislation    pro- 
hibited        4       25       254 

LOBBYING— a  felony   4       35       277 

what    constitutes 4       35       277 


10 

361 

10 

361 

25 

253 

3 

479 

10 

489 

16 

493 

9 

140 

9 

140 

9 

140 

9 

140 

13 

147 

4 

132 

4 

132 

9 

140 

25 

254 

11 

440 

25 

253 

4 

527 

5 

315 

2 

292 

15 

589 

18 

234 

15 

284 

15 

284 

15 

284 

15 

284 

16 

285 

19 

286 

1 

128 

13 

147 

11 

440 

23 

505 

6 

330 

17 

342 

26 

267 

20 

23ti 

INDEX.  769 

Art.  Sec.  Page 
LOCAL  LEGISLATION— on  certain  matters,  prohibited  4  25  252 
in    all    eases    where   general   laws    may    be    made    ap- 
plicable       4  25  252 

LOCAL    POLICE    AND    SANITAKY    LAWS— counties 

and   cities   to   enact 11 

how  vested  in  railroad   commission 12 

LOS   ANGELES— two   superior   judges   for... 6 

salary    of    superior    judge 6 

LOTTERIES— prohibited    4 

LUCRATIVE   OmCE— defined    4 


M 

MAJORITY — special   statute   cannot   declare  person   of 

age     4 

of  legislature  to  constitute  a  quorum 4 

necessary  to  pass  a  bill 4 

MALFEASANCE   IN   OFFICE— conviction    for,    a   dis- 
franchisement     20 

excludes    f "om    office,    juries,    etc 20 

MANAGERS — of  corporations,  how  elected 12 

MANDAMUS — supreme  court  may  issue 6 

district   courts   of   appeal   may   issue 6 

original  jurisdiction  in  superior  court 6 

MANDATORY — character    of    provisions    in    new    Con- 
stitution     1       22       186 

MANUFACTURING     SOCIETY— manner     of     electing 
officers    12 

MARGIN  CONTRACTS— for  stock,  void 4 

MARRIAGE — conformity    to    religious    forms    not    re- 
quired     20 

separate  property  of  husband  and  wife 20 

original  jurisdiction  in  annulment  of 6 

MATERIALMEN — secured  by  lien  on  property 20 

MAYOR — to  fill  vacancy  in  board  of  supervisors 11 

to  certify  copy  of  city  charter 11 

MECHANIC  ARTS— to  be  supported,  etc 9 

MECHANICS — secured  by  lien  on  property 20 

legislature  to  provide  for  enforcement  of 20 

MEMBERS  OF  ASSEMBLY— when  and  how  elected...   4 

term   of    office 4 

qualifications   of    4 

how  and  when  elected 4 

Constitution — 49 

<r.K3 


25 

253 

8 

227 

15 

230 

11 

588 

11 

588 

12 

490 

4 

296 

4 

296 

5 

315 

11 

489 

26 

267 

7 

586 

8 

586 

5 

315 

15 

589 

7 

386 

8 

403 

9 

360 

15 

589 

15 

589 

3 

224 

3 

224 

4 

224 

5 

224 

770 


INDEX. 


Art. 
MEMBERS    OF    ASSEMBLY— to    be    privileged    from 

arrest    4 

for  what  offices  disqualified 4 

per   diem   and   mileage ; 4 

influenced  by  promise  of  reward  guilty  of  felony....   4 

not  to  receive  free  pass  on  railroad 12 

to  take  and  subscribe   oath 20 

MEMBERS  OF  LEGISLATURE— limitation  of  pay  of..  4 

to  be   privileged  from  arrest 4 

for  what  offices  disqualified 4 

restriction  as  to  power  to  adjourn 4 

to  vote  viva  voce    4 

MERCANTILE      SOCIETIES  — manner      of      electing 
officers    12 

MESSAGE — of   governor  to   legislature 5 

MILEAGE — to  members  of  legislature 4 

MILITARY- — subordinate  to  civil   power 1 

standing  army  not  to  be  kept  in  time  of  peace 1 

See  Militia. 

MILITIA — no   imprisonment    for   fines 1 

organization  and  discipline  of 8 

restriction  as  to   carrying  banners   or  flags 8 

officer,  when  not  eligible  to  civil  office 4 

governor   to  be   commander-in-chief 5 

to   sign   and   seal   commissions 5 

power  of  governor  to  call  out 8 

governor  to  remain  in  command  of 5 

exemption  of  electors  from  duty  in 2 

MINORS — cannot  be  afi'ected  by  special  statute 4 

as   to   property   of 4 

MISAPPROPRIATION— of     public     moneys,      to     dis- 
franchise       2 

MISCARRIAGE    OF    JUSTICE— reversal    of    judgment 
for    6 

MISCELLANEOUS   SUBJECTS    20 

MISDEMEANOR — in  office,  provisions  to  be  made  for 

punishment  of   4 

local   and   special  legislation   prohibited 4 

original  jurisdiction  in  superior  courts 6 

MONEY — how  and  when  drawn  from  treasurj' 4 

in  treasury  cannot  be  refunded  under  special  act....  4 
paid  on  stock  bought  on  margin  recoverable  back....  4 
in  hands  of  municipal  officers  to  be  paid  into  treasury. 11 
officers  using  or  making  profit  guilty  of  a  felony.... 11 


Sec. 

Page 

11 

229 

19 

235 

23 

242 

35 

277 

19 

497 

3 

584 

2 

223 

11 

229 

19 

235 

14 

230 

28 

270 

11 

489 

10 

283 

23 

242 

12 

147 

12 

147 

15 

174 

1 

352 

2 

352 

20 

236 

5 

280 

14 

284 

1 

352 

16 

285 

3 

196 

25 

253 

25 

253 

190 


4i 

313 

1 

583 

18 

234 

25 

252 

5 

315 

22 

237 

25 

253 

26 

267 

16 

458 

17 

460 

5 

486 

1 

512 

1 

571 

16i 

459 

4 

527 

4 

527 

5 

529 

INDEX.  771 

Art.      Sec.     Page 
MONEY — corporation    can    issue    nothing    but    lawful 

money  of  United  States 12 

liable   to    taxation 13 

to  be  applied  to  payment  of  state  debt 16 

deposit    of    11 

MONGOLIANS— See  Chinese. 

MORTGAGES— taxation    of    13 

how   taxed    13 

contract  of  debtor  to  pay  tax  void 13 

MUNICIPAL  AFFAIRS— what  are 11         6       376 

MUNICIPAL      FUNCTIONS— performed      by      county 

officers     11         6       376 

MINIMUM   WAGE— for  women   and   minors 20       17^     594 

MUNICIPAL  CORPORATION— prohibited  from  aiding 

sect  or  creed  4 

prohibited  from  loaning  or  giving  its  credit 4 

shall  not  be  created  by  special  acts 11 

to  be  organized  and  classified  by  general  laws 11 

and  subject  to  control  of  general  laws 11 

charter  of  city,  how  obtained 11 

not  to  be  relieved  from  proper  share  of  taxes 11 

power  to  assess  and  levy  taxes 11 

authority  as  to   improvements 11 

authority  to  appoint  inspection  officers 11 

private  property  not  to  be  taken  for  debts  of 11 

moneys  to  be  deposited  with  treasurer 4 

use  of  same  by  official  a  felony 11 

property  to  exempt  from  taxation 13 

property   of,   outside   of,   how   assessed 13 

prohibited  from  employing  Chinese 19 

See    City;    City    and    County;    City,    County    or 
Townships. 

MUNICIPAL  DEBTS— liability  of  new  counties 11 

private   property  not   to  be   taken   for 11 

restriction   on  power   to  incur 11 

MUNICIPAL  FINE — appellate  jurisdiction   of  supreme 

court    6 

original  jurisdiction   of  superior   court 6 

MUNICIPAL  OFFICERS— election  or  appointment   of.  11 

accountability  of    11 

compensation  not  to  be  increased  during  term 11 

term   not   to   be   extended 11 

to  pay  moneys  into  the  treasury 11 

MUNICIPAL  TAXES — power  delegated  to  municipality.il       12       452 


30 

270 

31 

270 

6 

376 

6 

376 

6 

376 

8 

403 

10 

439 

12 

452 

13 

455 

14 

458 

15 

458 

16 

458 

17 

460 

1 

512 

1 

512 

3 

581 

3 

367 

15 

458 

18 

460 

4 

296 

5 

315 

5 

371 

5 

371 

9 

436 

9 

436 

16 

458 

772 


INDEX. 


*'                                         Art.  Sec.  Page 

NAMES — change   of,   special  legislation   prohibited 4  25  253 

NATURALIZATION— power   of  superior  court 6  5  315 

NAVIGABLE  WATERS— harbor  frontages  as 15  1  569 

to    be    protected 15  1  569 

NAVIGATION— freedom  of  to  be  secured 15  2  569 

NEGLECT — of   supervisors   to   fix  water  rates,   penalty 

for    14  1  561 

rights   of   parties   interested 14  1  561 

NEVADA — salary  of  superior  judge 6  17  342 

NEW  COUNTIES— restrictions  on  formation  of 11  3  367 

NONJUDICIAL  DAYS— certain   writs   served  on 6  5  315 

NORMAL  SCHOOL— may  be  established  by  legislature  9  6  356 

NOTICE — of  meeting  for  increase  of  corporate  stock..  12  11  489 

NUISANCES — appellate  jurisdiction  of  supreme  court.   6  4  296 

original  jurisdiction  of  superior  court 6  5  315 

0 

OATH  OF  OFEICE- member  of  legislature  to  take... 20  3  584 

form  of  oath   of  office 20  3  584 

executive  and  judicial  officers  to  take 20  3  584 

OATH  OR  AFFIDAVIT— to  sustain  issue  of  warrants .  .   1  19  182 

of  senators  on  trial  by  impeachment 4  17  233 

to  be  taken  by  justices  and  judges  on  drawing  salary  6  24  349 

form  of  oath  of  office 20  3  584 

OBLIGATIONS— of  contract  not  to  be  impaired 1  16  175 

existing,  unaffected  by  adoption  of  new  Constitution. 22  2  601 

OFFENSES — to  be  prosecuted  by  indictment  or  infor- 
mation        1  8  138 

no  person  to  be  put  twice  in  jeopardy 1  3  132 

right  of  trial  by  jury  secured 1  7  135 

impeachment  of   officer  for    4  18  234 

power  of  governor  to  grant  pardon  for 7  1  350 

OFFICE    OF    CORPORATION— to    be    maintained    in 

state 12  14  491 

OFFICES — property   qualification   not   necessary 1  24  187 

disqualification   in  certain   cases 4  19  235 

who  ineligible  for    4  20  236 

embezzlement  and  defalcation  to  disqualify  for 4  21  237 

cannot  be   created  by  special  legislation 4  25  253 

vacancy,  when  filled  by  governor 5  8  280" 

to  be  maintained  by  corporation 12  14  491 

forfeiture  for  acceptance  of  free   passes 12  19  497 


Sec. 

Page 

o 

584 

3 

584 

4 

585 

10 

588 

11 

588 

16 

591 

20 

596 

INDEX.  773 

Art. 

OFFICES— oath  of  office,  form  of 20 

no  declaration  or  test  required 20 

created  by  law,  how  filled    20 

offering  bribe  to  procure  election  a  disqualification.  .20' 

exclusion   from   for   bribery,   forgery,    etc 20 

term  of  when  not  herein  declared 20 

terms  of,  when  to  commence 20 

hereafter   created   to   be   subject   to   legislative   direc- 
tion      20         4       585 

OFFICER — fees    and    salaries,    special    legislation    pro- 
hibited        4 

not  to  be  allowed  extra  compensation 4 

to  regulate  rates  of  charges  of  corporations 4 

who   impeachable    4 

of  departments  to  furnish  information  to  executive..   5 

of  United  States  not  eligible  for  governor 5 

of  militia  elected  and  appointed  pursuant  to  law....   8 

to  be  commissioned  by  governor 8 

of  city,  county,  or  town,  term  of  office  and  compensa- 
tion      11 

using  or  making  profit  out  of  public  money  a  felony.  11 

of  corporation,  residence  to  be  entered  in  books 12 

not  to  be  interested  in  furnishing  supplies,  etc 12 

of   state,    acceptance    of   free    passes    a    forfeiture    of 

office     12 

or  corporation,  fined  and  imprisoned  for  extortion.  .  .12 

executive  and  judicial,  to  take  oath  of  office 20 

for    offices    hereafter    created    to    be    elected    or    ap- 
pointed     20 

when  to  hold  office  at  pleasure  of  appointing  power.. 20 

term  not   to    exceed    four    years 20 

term  of,  when  to  commence 20 

term   of  at  first  election 22 

OFFICIAL  ACTS — cannot  be  validated  by  special  acts.   4 
record  to  be  kept 5 

OFFICIAL  OATH   20 

OPINIONS— to  be  published    6 

free  for  publication  by  anyone   6 

of  district  courts  of  appeal    6 

ORDINANCE— to  fix  water  rates   14 

ORGANIZATION— of  supreme   court    6 

of  district  courts  of  appeal 6 

of  superior  court    6 

of  municipal   corporations    11 

ORIGINAL  JURISDICTION— of  superior  court 6 

ORPHANS — state  may  provide  for  support  of 4 

See  Children. 


25 

254 

32 

274 

33 

276 

18 

234 

6 

280 

12 

284 

1 

352 

1 

352 

9 

436 

17 

460 

14 

491 

18 

496 

19 

497 

22 

500 

3 

584 

4 

585 

16 

5yl 

16 

591 

20 

591 

10 

604 

25 

253 

18 

280 

3 

584 

16 

342 

16 

342 

16 

342 

1 

561 

0 

292 

4 

296 

6 

330 

6 

376 

5 

315 

22 

237 

774 


INDEX. 


Art. 
PANAMA-PACIFIC       INTERNATIONAL       EXPOSI- 
TION— amendments  to  San  Francisco  charter  in  aid 

of    11 

municipal   bonds  for    11 

use  of  Golden   Gate  Park  for   11 

use  of  school  lands  for   11 

use  of  public  streets  for   11 

state  bonds  for   4 

commission     4 

Alameda  County,  bonds   for 11 

PARDON — power  of  governor  to  grant 7 

restriction  on  power   7 

PARKS — special  legislation  prohibited   4 

PARTIES— corporations  may  sue  and  be  sued 12 

PASSAGE  OF  BILLS— mode  of 4 

when  bill  becomes  a  law  4 

PAUPERS — exemption  from  poll  taxes   13 

PAYMENT  OF  TAX— by  installments   13 

PEACE  AND  SAFETY— to  be  secured    1 

PENALTIES — cannot  be  remitted  by  special  legislation  4 

for  absence  of  member  of  legislature 4 

on  transportation  companies  for  excessive  charges...  12 

legislature  may  prescribe  additional   12 

of  supervisors  for  neglect  to  fix  water  rates 14 

for  unduly  influencing  elections    20 

PEOPLE — political  power  inherent  in 1 

right  of  free  assemblage  and  petition   1 

right  of  security  from  searches   and  seizures 1 

rights  not  impaired  by  enumeration  in  Constitution..  1 

style  of  process  in  name  of   6 

PER  DIEM— of  legislators   4 

of  lieutenant-governor     5 

of  delegates,  legislature  may  provide  for  20 

PERJURY — disqualification  on   conviction  for 4 

to  exclude  from  office,  jiirj^,  and  right  of  suffrage.  .  .  .20 

PERPETUITIES— prohibited,    except    for    certain    pur- 
poses     20 

PERSONAL  AND  PROPERTY  RIGHTS— security  of . .   1 

PERSONAL    PROPERTY— exemption    of,    from    taxa- 
tion      13 

PETITION— right  of  secured 1 

PLACE  OF  TRIAL— in  libel  cases   1 

may  be  changed   1 


sc.    Page 


8a 

434 

8a 

434 

8a 

434 

8a 

434 

8a 

434 

22 

237 

22 

237 

18 

460 

1 

350 

1 

350 

25 

253 

4 

486 

15 

230 

16 

231 

12 

538 

7 

531 

4 

132 

25 

254 

8 

227 

22 

500 

22 

500 

1 

561 

11 

588 

2 

131 

10 

141 

19 

182 

23 

187 

20 

347 

23 

242 

19 

286 

19 

595 

19 

235 

11 

588 

9 

587 

13 

147 

lOi 

538 

10 

141 

9 

140 

9 

140 

Sec. 

5 

16 

Page 
315 
493 

25 

253 

13 

589 

3 

601 

INDEX.  775 

Art. 
PLACE  OF  TRIAL— of  real  actions 6 

in  suits  affecting  corporations   12 

PLACES    OF   VOTING— to    be   fixed   by    general    laws, 
except     4 

PLURALITY  VOTE— constitutes  a  choice 20 

POLICE  COURTS— not  abolished  by  new  Constitution. 22 

POLICE    JUDGES — local    and    special    legislation    pro- 
hibited     4       25       252 

POLICE  LAWS— legislature  to  pass   19         1       580 

county,  city,  town  or  township  to  make 11       11       440 

POLICE   POWERS— of  state 4         1       213 

corporations  subject  to  exercise  of  12         8       488 

POLICE  REGULATIONS— county,   city,   or  town,   may 

enforce    .11       11       440 

POLITICAL    CORPORATION— prohibited    to    give    or 

lend  credit   4       31       270 

POLITICAL  POWERS— inherent  in  people 1         2       131 

POLITICAL   SUBDIVISION— not   to   subscribe   to    cor- 
poration stock  4       31       270 

POLL  TAXES— legislature  may  provide  for 13 

to  be  paid  into  school  fund 13 

abolished    13 

POPULAR  ASSEMBLIES— rights  of  citizens 1 

POSSESSION  OF  PROPERTY— rights  of  foreigners...    1 

POSTMASTER— when  may  hold  civil  office   4 

POWER    OF    TAXATION— not    to    be    surrendered    in 

grant    13         6       531 

POWERS  OF  GOVERNMENT— how  distributed 3 

legislative,  where  vested   4 

executive,  where  vested    5 

judicial,  where  vested   6 

pardoning  power    7 

militia     8 

municipal  corporations    11 

PRACTICE  IN   COURTS— local   and  special  legislation 
prohibited    4 

PREAMBLE— to   Constitution    1 

PRESIDENT  OF  'SENATE— who  is 5 

pro  tempore,  when  to  act  as  governor  5 

PRESIDING  JUDGE— to  be  chosen   6 

duties  of   6 


12 

538 

12 

538 

12 

538 

10 

141 

17 

181 

20 

236 

198 

202 

279 

289 

350 

352 

16 

458 

25 

252 

1 

128 

15 

284 

15 

284 

6 

330 

6 

330 

776 


INDEX. 


Art. 
PEESIDING  JUSTICE— of  court  of  appeals 6 

PRESS— liberty  of,  secured    1 

PRIMARY  ELECTIONS— provision  for  2 

PRINCIPAL   PLACE   OF   BUSINESS— of   corporations 
to  be  maintained   12 

PRINTING— bills  to  be  printed   4 

PRISON  DIRECTORS— See  State  Prison  Directors. 

PRIVILEGE — from  arrest,  of  members  of  legislature..   4 
of  electors  on  election  day 2 

PRIVILEGES    AND   IMMUNITIES— of    citizens 1 

cannot  be  granted  by  special  act   4 

reservation  of  power  in  legislature  to  revoke  or  repeal  1 

See  Immunities. 

PROBATE    MATTERS— appellate    jurisdiction    in    su- 
preme court   6 

original  jurisdiction  in  superior  court 6 

PROCESS — privilege  of  member  of  legislature  from.  ...   4 

of  supreme   court    6 

of     superior  courts,  extent  of 6 

style  of  6 

power  of  railroad  commissioners  to  issue 12 

to  compel  fixing  of  water  rates  14 

PROCLAMATION — for  special  session  of  legislature...   5 

on  revision  of  Constitution 18 

on  computation  of  votes  on  new  Constitution 22 

PROFESSION— sex  not  to  disqualify  from  pursuit  of.. 20 

PROHIBITION — jurisdiction  of  supreme  court 6 

of  district  court  of  appeal 6 

of  superior  courts   6 

certain   writs   may   be    served   on   holidays    and    non- 
judicial days    6 

of  introduction  of  Chinese 19 

PROHIBITORY — provisions  of  Constitution,  when 1 

PROMOTION — of  intellectual  improvement   9 

PROPERTY — right  to  acquire,  possess,  and  defend ....   1 
persons  not  to  be  deprived  of  without  due  process  of 

law    1 

not  to  be  taken  or  injured  for  public  use,  etc 1 

cannot  be  exempted  by  special  legislation 4 

liability  to  taxation,  what  includes   13 

PROPERTY  QUALIFICATION— not  to  be  required   to 
vote  or  hold  office   1 


Sec.    Page 


296 
140 


2i     193 


14 

491 

15 

230 

11 

229 

2 

131 

21 

184 

25 

253 

21 

184 

4 

296 

5 

315 

11 

229 

4 

296 

5 

315 

20 

347 

22 

500 

1 

561 

9 

283 

2 

578 

9 

604 

18 

595 

4 

296 

4 

296 

5 

315 

5 

315 

4 

581 

22 

186 

1 

353 

1 

128 

13 

147 

14 

163 

25 

253 

1 

512 

24 

187 

INDEX.  777 

Art.  Sec.  Page 

PEOSECUTIONS— to  be  conducted  in  name  of  people.   6  20  347 

existing  unaffected  by  adoption  of  new  Constitution.  .22  2  601 

right  of  trial  by  jury  secured   1  7  135 

rights  of  party  accused   1  13  147 

PROTECTION— from  alien  paupers,  criminals,  etc 19  1  580 

PROVISIONS    OF     CONSTITUTION— mandatory     and 

prohibitory     1  22  186 

See  Constitution;  State  Constitutions. 

PUBLIC    DEBTS— private    property    not    to    be    taken 

for    11  15  458 

PUBLIC  FUNDS — statement   of  receipts   and   expenses 

to  be  published 4  22  237 

to  be  deposited  with  treasurer 11  16  458 

making  profit  on,  or  using,  a  felony 11  17  460 

PUBLIC  GRANTS — power  to  tax  not  to  be  surrendered 

or  suspended    13  6  531 

PUBLIC  GROUNDS— special  legislation  prohibited 4  25  253 

PUBLIC  IMPROVEMENTS— in  cities,  how  to  be  made.  11  19  468 

PUBLIC  LANDS— right  to  fish  on   1  25  188 

suitable  for  cultivation   17  3  575 

See  Lands. 

PUBLIC   OFFICERS— when  not   to   receive   extra   com- 
pensation      4  32  274 

PUBLIC   SAFETY— suspension   of   writ   of  habeas   cor- 
pus       1  5  133 

PUBLIC  SCHOOLS— legislature  to  provide  a  system  of .   9  5  355 

what  to  include    9  6  356* 

property  exempt  from  taxation   13  1  512 

taxes  for  support  of  13  14(e)  543 

See   Common   Schools;    Evening   Schools;    Normal 
Schools. 

PUBLIC  USE— in  eminent  domain  defined 1  14  164 

legislative  discretion   1  14  164 

water  rights  declared  for 14  1  561 

PUBLIC   UTILITIES— regulation    of    by   railroad    com- 
mission      12  23  505 

compensation    fixed    by    railroad    commission    in    emi- 
nent  domain    12  23a  510 

PUBLIC   "WORKS — on   streets   of   city,   provisions   con- 
cerning     11  19  468 

Chinese  prohibited  from  employment  on 19  3  581 

eight  hours  to  constitute  a  day's  work 20  17  594 


778 


INDEX. 


Art.  Sec.  Page 

PUBLICATION— of  proceedings  of  caeh  house 4  10  228 

of  receipts  and  expenditures  at  each  session 4  22  237 

of  all  laws  and  official  writings  to  be  in  English 4  24  243 

of  judicial  decisions   6  16  342 

of  proposed   city  charter    11  8  403 

of  rates  of  fares  and  freights    12  22  500 

of  proposed  amendments  to  Constitution   18  1  577 

PUNISHMENTS— cruel  and  unusual,  prohibited 1  6  134 

for  extortion  in  rates  of  fares  and  freights 12  22  500 

Q 

QUALIFICATION— of  voters   2  1  190 

property  not  essential  to   1  24  187 

of  members   of   legislature    4  4  224 

each  house  to  Judge  of  4  7  227 

of  governor    5  3  280 

of  lieutenant-governor    5  15  281 

of  justices  of  supreme  court   6  23  34S 

of  justices  of  district  courts  of  appeal   6  23  348 

of  judges  of  superior  courts   6  23  348 

declaration  or  test  not  required 20  3  584 

for  office  of  public  trust    20  3  584 

for  office  of  county  commissioner   12  22  500 

QUAETERING  OF  SOLDIERS— provisions  concerning.    1  12  147 

QUORUM — majority  of  house  to  constitute 4  8  227 

less  may  adjourn  and  compel  attendance   4  8  227 

QUO  WARRANTO — power  of  superior  court 6  5  315 

jurisdiction  of  district  courts  of  appeal 6  4  296 


R 

RAILROAD  COMMISSION— use  of  free  passes  on  rail- 
roads     12 

to  be  appointed 12 

salary  and  term  of  office   12 

qualification  of 12 

not  to  be  interested  in  any  transportation  company.  .12 

as  stockholder,  creditor,  agent,  or  employee 12 

powers  and  duties  of 12 

to  prescribe  uniform  system  of  keeping  accounts.  ..  .12 

to  fix  rates  of  fares  and  freight 12 

and  publish  the  same  from  time  to  time 12 

rates  fixed  by  them  to  be  deemed  fair  and  reasonable.  12 
to  examine  books,  etc.,  of  transportation  companies.  .  12 

to  hear  and  determine  complaints   12 

to  enforce  decisions  and  correct  abuses 12 

to  report  to  governor  annually    12 


19 

497 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

50O 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

23 

505 

23a 

510 

23a 

510 

17 

496 

17 

49S5 

17 

496 

18 

496 

IS 

496 

19 

497 

19 

497 

INDEX.  779 

Art       S'^c      Pa'^e 
RAILROAD     COMMISSION— legislature     may     confer 

further  powers    12 

or  maj-  remove  one  or  more  of  them 12 

vacancies  may  be  filled  by  governor 12 

appointee,  term  of  office  of 12 

first  election  of  districts  allotted   12 

to  fix  compensation  in  eminent  domain   12 

control  over  public   utilities   12 

EAILROAD   COMPANIES— may   connect   at   state   line 

with  foreign   corporations    12 

may  intersect,  connect,  or  cross  other  railroads 12 

delay  and  discrimination  prohibited   12 

officer,  agent,  or  employee  not  to  be  interested  in  fur- 
nishing with  materials  and  supplies   12 

nor  when  leased   12 

not  to  grant  free  passes  to  state  officials 12 

or  passes   or   tickets   at   a   discount 12 

not    to    combine    with    carriers    to    share    earnings    in 

certain  cases    12       20       497 

rates  when  lowered  cannot  be  raised  without  consent 

of  government   12 

government  to  regulate  fares  and  freights 12 

no  discrimination  between  places  or  persons 12 

fares  and  freights  to  any  station  not  to  exceed  those 

to  a  more  distant  station   12 

excursion  and  commutation  tickets  at  special  rates...  12 

Btate  to  be  divided  into  three  railroad  districts 12 

and  commissioners  elected  for  each 12 

fine   for   failure   to   comply   with   regulations   of   com- 
missioners      12 

fine  and  imprisonment  of  officers  of  company 12 

exemplary  damages  for  excessive  charges 12 

temporary   districts    12 

legislature  to  enforce  provisions   12 

property  of,  how  assessed   13 

apportionment   of  values    13 

Low  assessed  for  taxation   13 

EAILROAD    DISTRICTS— state    to    be     divided    into 

three   12 

temporary  allotment   12 

RATES  OR  CHARGES— by  corporations,  regulation  of.    4 

on  railroads,  provisions   concerning    12 

to  be  fixed  by  railroad  commissioners 12 

of  public  utilities  to  be  fixed  by  railroad  commission.. 13 

REAL  ACTIONS— where  to  be  brought 6 

REAL  ESTATE — restriction  on  tenure  by  corporation.  .  12 

REBELLION    OR    INVASION— suspension    of    habeas 

corpus    1 

power  of  governor  to  suppress  or  repel    8 


20 

497 

20 

497 

21 

498 

21 

498 

21 

498 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

23 

505 

24 

511 

10 

535 

10 

535 

14 

539 

22 

500 

23 

505 

33 

276 

20 

497 

22 

500 

1 

512 

5 

315 

9 

488 

5 

133 

1 

352 

7S0  INDEX. 

Art. 
EECALL    23 

EECEIPTS    AND    EXPENDITURES— to    be    published 
with  laws   4 

EECESS  OF  LEGISLATURE— restrictions,  payment  of 
members    4 

RECLAMATION  DISTRICTS— supervision  of   11 

RECOGNIZANCES— obligations,     etc.,     unaffected     by 
adoption  of  new  Constitution   22 

RECOMMENDATIONS— to    be    made    by    governor    at 
every    session    5 

RECORD — of   oflacial   acts  to   be  kept  by   secretary   of 

state    5 

to  be  kept  by  railroad  companies 12 

RECORDER  OF  DEEDS— duty  as  to  city  charters 11 

REDRESS  OF  GRIEVANCES— right  of  petition 1 

REFERENDUM — reference  of  laws  to  the  people 4 

REFORMATORY  INSTITUTIONS— legislature   to   pre- 
scribe  rules    10 

REGISTRAR- of  voters,  in  San  Francisco,  duty  of 22 

REGULATION — of    court    practice,    special    legislation 

prohibited    4 

of  rates  of  telegraph,  gas,  etc.,  companies 4 

of  fares  and  freights  on  railroads   12 

RELATION — of  state  to  American  Union   1 

RELEASE  OF  DEBT  OR  OBLIGATION— special  legis- 
lation  prohibited    4 

RELIGION — free  exercise  of  secured   1 

test  of  not  to  apply  to  witness  or  juror 1 

aid     to    private     corporations     and    institutions     pro- 
hibited      4 

aid  to  sect  and  creed  prohibited  4 

RELIGIOUS  FREEDOM— guaranteed   1 

RELIGIOUS  SECT— appropriations  prohibited 4 

RELIGIOUS  TEST— not  required  of  witness  or  juror.  . .    1 

RELIGIOUS    WORSHIP— property    used    for,    exempt 
from  taxation   13 

REMEDIES — when  cannot  be  impaired 1 

REMOVAL- of  judicial  officer 6 

of  Chinese  from  cities  or  towns   19 

of  supreme  court  reporter   6 

of  presiding  judge  in  San  Francisco   6 


Sec. 
1 

Page 
607 

22 

237 

14 

230 

13 

455 

3 

601 

10 

283 

18 

22 

286 
500 

8 

403 

10 

141 

1 

202 

2 

364 

6 

603 

25 
33 
22 

252 
276 
500 

132 


25       253 


4 

132 

4 

132 

22 

237 

30 

270 

4 

132 

30 

270 

4 

132 

IJ 

526 

16 

175 

10 

335 

4 

581 

21 

347 

6 

330 

INDEX.  781 

Art.  Sec.  Page 

REPORTER  OF  SUPREME  COURT— appointment  of..  6  21  347 

salary  and  term  of  office 6  21  347 

REPRESENTATION— in  legislature    4  6  225 

REPRIEVES — power  of  governor  to  grant 7  1  350 

RESERVED  RIGHTS— of  the  people   1  23  187 

RESIDENCE — for    purpose     of    voting,    what    not    to 

affect    2  4  196 

not  affected  by  absence  on  public  business 20  12  588 

RESIGNATION— of  governor,  who  to  act 5  16  285 

RETROSPECTIVE  STATUTES— validity  of 1  16  175 

RETURN— of  bill  by  governor   4  16  231 

RETURNS  OF  ELECTION— for  governor 5  4  280 

on  revision  of  Constitution   18  2  578 

REVENUE  AND  TAXATION 13  1  512 

property  to  be  taxed  in  proportion  to  its  value 13  1  512 

property  to  include  money,  credits,  bonds,  etc 13  1  512 

what  property  exempt   13  1  512 

deduction    from    credits    of    debts    due    residents    of 

state    13  1  512 

exemption  of  army,  navy,  marine  corps,  and  revenue 

service    13  11  525 

property  used  for  religious  worship   1  1^  526 

bonds  exempt 13  1 J  526 

lands  and  improvements  to  be  separately  assessed.  .  .  .13  2  526 
lands    similarly    situated    and    of    equal    value    to    be 

assessed  at  same  value   13  2  526 

to  be  assessed  by  sections  and  fractions  of  sections..  13  3  527 
mortgage,  deed  of  trust,  etc.,   deemed   an  interest   in 

property 13  4  527 

exceptions  in  favor  of  railroad  and  other  quasi   cor- 
porations      13  4  527 

tax  a  lien  on  property  and  securities 13  4  527 

if  paid  by  owner  of  security,  becomes  part  of  debt. .  .13  4  527 

if  paid  hy  owner,  to  be  deducted  from  secured  debt.  ..13  4  527 

contracts  by  debtor  to  pay  tax  on  the  security  void.  .13  5  529 

power  to  tax  not  to  be  surrendered  or  suspended.  ..  .13  6  531 

legislature  may  provide  for  payment  by  installments.. 13  7  531 

statement  by  taxpayer   13  8  531 

state    board  of  equalization  13  9  532 

place   of   assessment    13  10  535 

exemption   of  one  hundred  dollars    13  10^  538 

income  taxes   13  11  538 

poll  tax  13  12  538 

trees  and  vines  exempt    13  12f  538 

taxes  for  state  purposes    13  14  539 

See  Assessment;  Taxation. 


782 


INDEX. 


Art 
EEVISION  OF  CONSTITUTION   18* 

two-thirds  vote  of  each  house  necessary  to  command.  .18 

convention  for  revision,  when  to  be  elected 18 

of  what  to  consist   18 

delegates,   when  to   meet 18 

result  to  be  submitted  to  vote  of  people 18 

returns  and  proceedings  thereon    18 

executive  to  declare  result   18 

majority  of  votes  required  to  ratify 18 

RIGHT— inalienable    1 

of  witnesses 1 

to   bail    1 

right  of  free  assemblage   1 

of  accused  in  criminal  proceedings 1 

of  foreign  residents  1 

of  security  from  search  and  seizure   1 

euumeration  not  to  impair  others  retained 1 

right  of  suffrage   2 

Chinese  excluded  from   2 

privilege    of    electors    2 

from  military  duty   2 

EIGHT  OF  WAY— appropriation  of 1 

on  navigable  waters  not  to  be  obstructed 15 

BOAI>S — local  and  special  legislation  prohibited 4 

RULES  OF  COURT— supreme  court  to  adopt   6 

RULES  OF  PROCEEDING— each  house  to  regulate 4 


Sec. 

Page 

1 

577 

2 

578 

2 

578 

2 

578 

2 

578 

2 

578 

2 

578 

2 

578 

2 

578 

1 

128 

6 

134 

6 

134 

10 

141 

13 

147 

17 

181 

19 

182 

23 

187 

1 

190 

1 

190 

2 

193 

3 

196 

14 

163 

2 

569 

25 

253 

4 

296 

228 


s 

SABBATH — power  to  regulate  observance  of 1  1  128 

SACRAMENTO— the   seat  of  government    20  1  583 

two  superior  judges  to  be   elected 6  6  330 

salary  of 6  17  342 

SAFETY  AND  HAPPINESS— right  to  pursue   1  1  12S 

SALARIES — of  officers,  special  legislation  prohibited..   4  25  254 

of  governor    5  19  286 

of  certain  officers  to  be  fixed  by  legislature 5  19  286 

of  justices  of  supreme  court   6  17  342 

to  be  paid  by  state   6  17  342 

of  judges  of  superior  court  6  17  342 

half  to  be  paid  by  state  and  half  by  county 6  17  342 

of  reporter  of  supreme  court   6  21  347 

of  justices  and  judges,  conditions  precedent  to  draw- 
ing  of    6  24  349 

of  superintendents  of  public  instruction 9  2  353 

of  county  officers   11  5  371 

of  railroad   commissioners    12  22  500 


INDEX.  783 

Art.  Sec.  Page 

SAN  FRANCISCO— to  have  twelve  superior  judges 6  6  330 

one  to  be  chosen  to  preside   6  6  330 

salary  of,    6  17  342 

sessions  of  superior  courts   6  6  330 

bonded  indebtedness  of    11  18  460 

SANITARY    REGULATIONS— city,    county,    or    town 

may   enforce    11  11  440 

SAN  JOAQUIN — to  have  two  superior  judges   6  6  330 

salary    of    6  17  342 

SAN  JOSE— bonded  indebtedness  of  11  18  460 

SANTA  CLARA— to  have  two  superior  judges 6  6  330 

salary   of    6  17  342 

bonded  indebtedness  of   11  18  460 

SAVINGS  AND  LOAN  SOCIETIES— how  assessed  for 

taxation     13  14  539 

SCHOOL    DISTRICT— officers    cannot   be    regulated    by 

special    laws    4'  25  254 

prohibited  from  aiding  religious  sect  or  creed 4  30  270 

restriction  as  to  incurring  indebtedness 11  18  460 

SCHOOLS.     See  Public  Schools;  Evening  Schools;  Nor- 
mal School;  Common  Schools;  Sectarian  Schools. 

SCHOOL  FUNDS — proceeds  of  land  sold,  etc.,  to  consti- 
tute       9  4  354 

applied  exclusively  to  primary  and  grammar  schools.  .   9  6  356 

poll  tax  to  be  paid  into   13  12  538 

SCHOOL  LANDS- sale   of    9  4  354 

SCIENTIFIC  IMPROVEMENT— to  be  promoted 9  1  353 

SEAL  OF  STATE— in  custody  of  governor 5  13  284 

SEARCHES      AND      SEIZURES  —  unreasonable      pro- 
hibited     1  19  182 

warrant  to  issue  only  on  probable  cause 1  19  182 

SEAT  OF  GOVERNMENT— at  Sacramento 20  1  583 

provision  for  change  of   20  1  583 

SECRETARY  OF  STATE— subject  to  impeachment 4  18  234 

to  countersign  grants  and  commissions 5  14  284 

mode  and  time  of  election  of 5  17  286 

term  of  office   5  17  286 

to  keep  record  of  official  acts   5  18  286 

duties  of  5  18  286 

compensation  for  services   5  19  286 

duty  as  to  city  charters   11  8  403 

to  canvass  returns  on  revision  of  Constitution 18  2  578 

to  furnish  paper  for  ballots  for  new  Constitution.  ..  .22  5  603 


Sec. 
9 

Page 
360 

30 

270 

8 

360 

4 
4 
5 

527 
527 
529 

19 

182 

19 

182 

1 

5 

1 

10 

202 
224 
289 
335 

20 
20 

288 
288 

784  INDEX. 

Art. 
SECTAEIAN  INFLUENCES— university  exduded  from  9 

SECTARIAN  PURPOSES— appropriations   prohibited.  .   4 

SECTARIAN  SCHOOLS— to  receive  no  public  aid 9 

SECURITIES— taxation  of  13 

how  assessed   13 

contract  of  debtor  to  pay  tax  void 13 

SECURITY — from  unreasonable  searches  and  seizures.    .1 

SEIZURES — unreasonable  prohibited    1 

SENATE — legislative  powers  vested  in 4 

number  of  members  of   4 

a  court  of  impeachment   6 

may  remove  justices  or  judges  6 

SENATOR   OF   UNITED    STATES— governor    disquali- 
fied for    5 

how    chosen    5 

SENATORIAL    AND    ASSEMBLY    DISTRICTS— divi- 
sion of  state 4         6       225 

SENATORS— when  and  how  chosen   4 

term  of  office 4 

number  of   4 

allotment  of 4 

to  try  all  impeachments   6 

to  be  on  oath 4 

for  what   offices  disqualified    4 

to  be  under  oath  or  affirmation 6 

SENTENCE — power   of  governor   to   suspend   execution 
of     7 

SEPARATE  PROPERTY— of  husband  and  wife 20 

SERVANT  OF  STATE— not  to  receive  extra  compensa- 
tion      4       32       274 

SESSIONS — of  legislature,  when  to  commence 4 

limitation   of    4 

to  be  open,  except   4 

of  superior  courts    6 

of  superior  courts  in  San  Francisco 6 

SEX — not  to  disqualify  for  pursuit  of  lawful  business.. 20 

not  to  disqualify  for  admission  into  colleges 20 

not  to  debar  from  admission  to  university 9 

SHARE'S    OF    STOCK— contracts    for    sale    on    margin 

void    4 

legislature  may  regulate  purchase  and  sale  of 4 

SHERIFF— legislature  to  provide  for  election  of 11         5       371 


4 

224 

4 

224 

5 

224 

5 

224 

1 

289 

17 

233 

19 

235 

1 

289 

1 

350 

8 

586 

2 

223 

2 

223 

13 

230 

7 

333 

6 

330 

18 

595 

18 

595 

9 

360 

26 

267 

26 

267 

18 

182 

4 

581 

14 

539 

12 

147 

6 

330 

17 

342 

4 

280 

25 

252 

19 

463 

INDEX.  785 

Art.      Sec.     Page 
SINKING  FUND— to  be   created  to   meet   interest   and 

debts    11       18       460 

SLAVERY— prohibited    1 

eoolieism  declared  a  form  of 19 

SLEEPING-CAR  COMPANIES— how  assessed  for  taxa- 
tion     13 

SOLDIERS — not  to  be  quartered  in  time  of  peace 1 

SONOMA — two  superior  judges  to  be  elected 6 

salary  of  judges  6 

SPEAKER  OF  ASSEMBLY— duty   on   election   returns 
for  governor   5 

SPECIAL  ACTS— prohibited  in  certain  cases 4 

SPECIAL  ASSESSMENTS— for  city  improvements   ...11 

SPECIAL   COMMISSION— powers   not  to  be   delegated 

to    11       13       455 

SPECIAL     LEGISLATION— in     certain     matters     pro- 
hibited     4 

prohibited  where  general  laws  apply   4 

SPECIAL  PRIVILEGES  AND  IMMUNITIES— restric- 
tions on  grant 1 

when  validity  to  cease   12 

SPECIAL  RIGHTS— cannot  be  granted  by  special  acts.   4 

SPECIAL  SESSIONS— of  legislature,  how  convened...   5 
power  to  act  in  5 

SPECIAL  STATUTE— not  to  create  municipal  corpora- 
tion      11 

SPEECH— liberty   of   secured , 1 

STANDING  ARMY— not  to  be  kept  in  time  of  peace.  . .    1 

STATE— a  part  of  the  Union 1 

police  powers,   of 4 

subdivision  into  senatorial  and  assembly  districts....   4 
authority  over  institutions  supported  by  state  aid...   4 

prohibited  to  subscribe  for  corporation  stock 4 

not  to  loan  its  credit 12 

nor  subscribe   for   corporation   stock 12 

to  be  divided  into  three  railroad  districts 12 

property  of  exempt  from  taxation 13 

to  replace  university  fund 9 

counties  as  subdivisions  of 11 

division    into    railroad    districts 12 

control  of   water   rights 14 

suits   against    20 

boundary  of 21 

Constitution — 50 


25 

252 

25 

252 

21 

184 

6 

487 

25 

252 

9 

283 

9 

283 

6 

376 

9 

140 

12 

147 

3 

132 

1 

202 

6 

225 

22 

237 

31 

270 

13 

491 

13 

491 

22 

500 

1 

512 

9 

SCO 

1 

366 

22 

500 

1 

561 

6 

586 

1 

597 

786  INDEX. 

Art.  Sec.  Page 

STATE  BOARD  OF  EQUALIZATION— constitution  of  .13  9  532 

election,  qualification,  and  term  of  office 13  9  532 

duties    of    office 13  9  532 

to  assess  railroads  and  their  property 13  10  535 

duties  of  in   relation  to   state   taxes 13  14  539 

STATE   BOARD   OF  HEALTH— legislature   to   provide 

for    20  14  589 

STATE   CONSTITUTIONS— defined    vi 

interpretation  and  construction   vii 

construction  of  terms    vii 

provisions,   mandatory  and  prohibitory 1  22  186 

STATE  CONTRACTS— power  of  taxation  not  to  be  sur- 
rendered     13  6  531 

STATE    INDEBTEDNESS— restriction    on    povrer    of 

legislature    16  1  571 

limit  to  aggregate  debt 16  1  571 

provisions  to  be  made  to  pay  interest 16  1  571 

as  well  as  for  principal 16  1  571 

provisions    as    to   laws    creating    debts 16  1  571 

STATE  INSTITUTIONS  AND  PUBLIC  BUILDINGS— 

alone  entitled  to   appropriations 10  1  364 

STATE  LANDS— to  be  granted  only  to  actual  settlers.  .17  3  575 

parcels  not  to  exceed  three  hundred  and  twenty  acres.  17  3  575 

STATE  OFFICERS— subject  to  impeachment 4  18  234 

election  and  term  of  office 5  17  286 

compensation  of   5  19  286 

not  to  acceptfree  passes  on  railroads 12  19  497 

STATE  PRISON  DIRECTORS— board  of   10  1  364 

of    whom    to    consist 10  1  364 

term   of   office 10  1  364 

classification   of    10  1  364 

term   of  appointee  to  vacancy 10  1  364 

to   have   charge   of   state  prison 10  2  364 

duties    of    10  2  364 

to  appoint  warden  and  clerk 10  3  364 

or  remove  them   for  cause 10  3  364 

no  compensation  other  than  expenses  incurred 10  4  365 

powers  and  duties  to  be  regulated  by  law 10  5  365 

convict  labor  to  be  regulated 10  6  365 

STATE   SCHOOL    TAX— to    be    applied    exclusively    to 

primary  and  grammar  schools 9  6  356 

STATE   TAXES — municipal   corporations   not  to  be  re- 
leased      11  no  439 

See  Revenue  and  Taxation. 

taxes  for  state  purposes    13  14  539 

taxes  on  railroads,    etc 13  14a  539 


INDEX.  787 

Art.  Sec.  Page 

STATE  TAXES— taxes  on  insurance  companies 13  14b  541 

taxes  oa  bank  stock    13  14e  541 

taxes  on  incorporated  banks    13  14c  541 

taxes  on  franchises    13  14d  543 

scliool  and  university  funds 13  14e  543 

provisions    self-executing    13  14f  544 

suits  to  recover  or  enjoin  tax 13  14g  545 

STATEMENT  OF  RECEIPTS  AND  EXPENDITUEES 

TO  BE  PUBLISHED 4  22  237 

of  taxable  property  to  be  made 13  8  531 

STATUTES— enacting  clause  of   4  1  202 

validity  of   x 

iu  part  invalid xiii 

power  to  declare   unconstitutional ix 

creating    state    debts,    provisions    in 16  1  571 

constitutionality  of   xi 

STOCK  BOARD— legislature  to  control  sales  of  stock..   4  26  267 

STOCK  EXCHANGE— to  be  subject  to  control  of  legis- 
lature       4  26  267 

STOCK     MARKET— legislature     to     control     sales     of 

stocks    4  26  267 

STOCK   OR  BONDS— of   corporation,   restriction   on   is- 
sue     12  11  489 

fictitious  increase  void   12  11  489 

STOCK    OF    CORPORATIONS— state    prohibited    from 

subscribing  for    4  31  270 

not  to  be  issued  except  for  money,  labor,  etc 12  11  489 

fictitious  increase  to  be  void 12  11  489 

state  not  to  be  interested  in    12  13  491 

office   to   be   maintained   for   transfer   of 12  14  491 

subject  to  assessment  for  taxation 13  1  512 

STOCKHOLDER — incompetent  to  appointment  to  regu- 
late charges   4  33  276 

individual  and  personal  liability  of 12  3  479 

iu  international  exposition  corporation 12  3  479 

rights  on  voting  for  managers  or  directors 12  12  490 

to  have  free  access  to  books,  etc.,  of  corporation.  ..  .12  14  491 

subscription   to   be   kept   iu   books 12  14  491 

STOCKS— taxable    13  1  512 

stock  in  banks,  how  taxed 13  14c  539 

STORAGE — charges  to  be  regulated  by  legislature 4  33  276 

STREET  ASSESSMENTS    11  19  46S 

STREETS— proceedings   for   improvement    of 11  19  468 

estimate  of  costs  and  expenses 11  19  468 

assessment  in  proportion  to  benefits 11  19  468 


Sec. 

Page 

19 

468 

19 

468 

19 

468 

25 

253 

4 

196 

20 

347 

24 

243 

14 

491 

25 

254 

1 

190 

1 

190 

2 

193 

11 

588 

11 

588 

6 

586 

14g 

539 

788  INDEX. 

Art. 
STREETS— to  be  first  collected  and  paid  into  treasury.  .11 

may  be  used  by  gas  and  water  companies 11 

municipality  to  regulate  rates  for  gas  and  water....  11 

STEEETS  AND  ALLEYS— local  and  special  legislation 
prohibited    4 

STUDENT — absence  not  to  prejudice  right  to  vote 2 

STYLE— of  process  6 

SUBJECT  OF  ACT— to  be  embraced  in  title 4 

SUBSCEIPTION— to  stock  to  be  entered  on  books 12 

SUCCESSION— special  legislation  prohibited   4 

SUFFRAGE— right  to,  who  entitled 2 

who  prohibited   2 

privilege  of  electors    2 

persons  convicted  of  crimes  disqualified  from 20 

freedom    of,    to    be    protected 20 

SUITS  AGAINST  STATE— subject  to  direction  of  law. 20 
to  recover  or  enjoin  tax 13 

SUNDAY  LA WiS— power  of  state  to  enact 

SUPERINTENDENT  OF  PRINTING— to  furnish  copies 

of  new   Constitution    22 

to  furnish  ballots  for,  to  county  clerks 22 

SUPERINTENDENT  OF  PUBLIC  INSTRUCTION— an 

executive  officer   9 

to   be   elected    9 

when  elected   22 

salary,  when  to  enter  on  office 9 

SUPERINTENDENT   OF  SCHOOLS— for  county,   elec- 
tion  of    9 

two  or  more  counties  may  unite 9 

SUPERINTENDENT  OF  STREETS— control  of  use  of 

streets    11       19       468 

SUPERIOR  COURT— invested  with  judicial  power 6 

appellate  jurisdiction  of    6 

jurisdiction   of    6 

power   of   naturalization 6 

appellate  jurisdiction  from  justice's  court 6 

always   open,   certain   days   excepted 6 

may  issue  writs   6 

for  each  county   6 

judges  may   apportion  business    6 

judges  of  different  counties  may  interchange 6 

provision  for  judge  pro  tempore 6 

judge  pro  tempore  to  be  a  member  of  the  bar 6 

to  be  a  court  of  record 6 


4 

602 

5 

603 

3 

353 

3 

353 

10 

604 

2 

353 

3 

353 

3 

353 

1 

289 

5 

315 

5 

315 

5 

315 

5 

315 

5 

315 

5 

315 

6 

330 

7 

333 

8 

333 

8 

333 

8 

333 

o 

340 

INDEX.  789 


Art. 

SUPEEIOR  COURT— to  appoint  commissioners 6 

salary  of,  when  payable 6 

judges  not  eligible  for  other  office 6 

not   to   practice   law    6 

SUPERVISOES— legislature  to  provide  for  election  of.  11 

classification    of    11 

constitute  county  boards  of  equalization 13 

duties  and  authority  of   13 

duty  as  to  common  schools   9 

as  to  examination  of  teachers 9 

to  fix  water  rates    14 

compulsory  process  on  failure 14 

See  Board  of  Supervisors. 

SUPREME  COURT— invested  with  judicial  powers 6 

to  consist  of  chief  justice  and  six  justices 6 

may  sit  in  departments  or  in  bank 6 

to  be  always  open 6 

to  be  divided  into  departments   1  and  2 6 

justices   to   be   assigned 6 

competent  to  sit  in  either  department 6 

may  freely  interchange   6 

each  department  to  hear  and  determine  causes 6 

three  justices  necessary  to  act 6 

justice  may  act  at  chambers 6 

concurrence  of  three   necessary  to   judgment 6 

chief    justice    to    apportion    business 6 

may  order  question  heard  in  bank 6 

either  before  or  after  judgment 6 

order  to  be   made   within   thirty   days 6 

and   concurred  in  by  two  justices 6 

its  effect  is  to  vacate  judgment 6 

four  justices  may  order  hearing  in  bank 6 

judgment  final   if  order   not  made  in  time 6 

judgment  by  department  not  final  till  thirty  days...  6 

unless  approved  by  chief  justice  and  two  justices...  6 

chief  justice  may  convene  court  in  bank  at  any  time.  6 

to    preside    6 

concurrence   of  four  necessary   for  judgment 6 

if  four  do  not  concur  all  qualified  must  sit 6 

and  concurrence  of  four  necessary  to  judgment 6 

decisions  in   all  cases  to  be   in   writing 6 

and   grounds   to  be  set  forth 6 

chief  justice  may  preside  in  either  department 6 

justices   assigned   to   select   one   to   preside 6 

when  may  select  chief  justices 6 

when  chief  justice  and  justices  to  be  elected 6 

term   of  office    6 

justices  first  elected  to  classify  by  lot 6 

so  as  to  vacate  two  seats  every  four  years 6 

entry  of  classification  on  minutes 6 


Sec. 

Page 

14 

341 

17 

342 

23 

348 

22 

348 

5 

371 

7 

386 

9 

532 

9 

532 

7 

357 

7 

357 

1 

561 

1 

561 

1 

289 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

2 

292 

3 

295 

3 

295 

3 

295 

3 

293 

3 

295 

790 


INDEX. 


Art. 
SUPEEME  COUET— and  to  he  filed  with  soeretary    of 

state    6 

in  ease  of  vacancy  governor  to  appoint 6 

first  election  under  new  Constitution 6 

opinions  to  be  published 6 

salaries    of   justices 6 

justices  ineligible  to   ofl&ce 6 

reporter   of   decisions    (5 

qualification    of    justices 6 

commission  of,  abolished 6 

SUPEEME   COURT  COMMISSION 6 

SUEVEYOE-GENEEAL— subject  to  impeachment 4 

mode  and  time  of  election 5 

compensation  of   . 5 

legislature  may  abolish  office 5 

SUTTEE — a  superior  judge  to  be  elected 6 

salary   of  judge    6 

T 

TAX — appellate  jurisdiction  of  supreme  court 6 

original  jurisdiction   of  superior   court 6 

commutation  of  prohibited    11 

assessment  and  collection  by  municipal  corporations.  .11 

TAXATION — local  and  special  legislation  phohibited. .   4 

property  cannot  be  exempted  by  special  acts 4 

assessment  of  revenue  under  township  organization.  .11 
for  municipal  purposes,  restriction  of  legislature.  ..  .11 
municipal  corporations  may  be  invested  with  powers 

of    11 

to  be  in  proportion  to  values 13 

property  of  county,  city  and  county,  or  municipal  cor- 
poration exempt   13 

outside  property  of  county,  city  and  county,  or  muni- 
cipal corporation,  how  assessed   13 

educational  institutions  exempt 13 

United  States  army,  etc 13 

churches  exempt    13 

bonds,   exempt    13 

what  property  taxable 13 

valuation  of  property 13 

for  public  improvements   13 

assessment  according  to  value 13 

exemption   from    13 

licenses    13 

land  and  improvements  to  be  separately  assessed.  ..  .13 

of  sectionized  and  unsectionized  lands 13 

securities  taxable   13 

a  lien  on  property  and  securities 13 

vessels  exempt  from   13 


Sec. 

Page 

3 

295 

3 

295 

3 

295 

16 

342 

17 

342 

18 

344 

21 

347 

24 

349 

25 

349 

25 

349 

18 

234 

17 

286 

19 

286 

19 

286 

6 

330 

17 

342 

4 

296 

5 

315 

10 

439 

12 

452 

25 

253 

25 

253 

4 

370 

12 

452* 

12 

452 

1 

512 

512 


512 

la 

525 

li 

525 

li 

526 

If 

526 

512 

512 

512 

512 

512 

522 

2 

526 

3 

527 

4 

527 

4 

527 

4 

529 

INDEX.  791 

'Art.  Sec.  Page 

TAXATION— contract  to  pay  tax  on  loan  void 13  5  529 

power  of,  cannot  be  surrendered  in  grant  or  contract.  13  6  531 

payment  by  installments   13  7  531 

sworn  statement  to  be  given  annually 13  8  531 

of  property  held  at  a  certain  day  and  hour 13  8  531 

state  board  of  equalization  to  be  elected 13  9  532 

county  board  of  equalization,  who  constitute 13  9  532 

duties   of   board    13  9  532 

property,  where  assessed   13  10  535 

state   board   to   assess   property   of   railroads   in   more 

than   one   county    13  10  535 

and  apportion  amount  among  the  counties 13  10  535 

in  proportion  to  number  of  miles  in  each 13  10  535 

income  taxes  may  be  assessed 13  11  538 

annual  poll  tax  may  be  levied 13  12  538 

poll  tax  abolished    13  12  538 

legislature  to   carry  out  constitutional  provisions.  ..  .13  13  539 

of  railroads,  etc 13  14  539 

of  insurance   companies    13  14  539 

of  banks    13  14  539 

of  franchises   13  14  539 

for  public  schools   13  14  539 

for  the  state  university  13  14  539 

when  due,  etc 13  14  539 

no  injunction   against 13  14  539 

recovery  of  taxes   13  14  539 

See  Assessment;  Ee venue  and  Taxation. 

TAXPAYER— statement,  when  to  be  made 13  8  531 

TEACHERS — examination  under  control  of  local  boards  9  7  357 

certificates  on  examination   1  7  135 

TECHNICAL  SCHOOLS— may  be  established 9  6  35G 

TELEGRAPH   COMPANIES— legislature   may   regulate 

charges    4  33  276 

how   assessed   for   taxation    13  14  539 

TELEPHONE    COMPANIES— how    assessed    for    taxa- 
tion  13  14  539 

TEN  DAYS— after  session  given  for  approval  of  bill..   4  16  231 

TERM  OF  OFFICE— of  assemblymen   4  3  224 

of  senators   5  2  279 

of  governor    5  2  279 

of  lieutenant-governor    5  13  284 

of  state    officers    5  17  286 

of  justices  of  supreme   court    6  3  295 

of  judges   of   superior   courts 6  6  330 

of  su]ioriutendent  of  public  instruction 9  2  353 

of  county   superintendent   of   schools 9  3  353 

of  state  prison  directors 10  1  364 


5 

371 

9 

436 

9 

436 

20 

497 

9 

532 

16 

591 

16 

591 

20 

596 

20 

596 

3 

584 

35 

277 

7 

357 

7 

357 

26 

267 

19 

497 

19 

497 

21 

498 

793  INDEX. 

Art.      Sec.    Page 

TEEM  OF  OFFICE— of  county  officers 11 

of  city,  county,  and  township  officers 11 

of  county   officers   not   to   be   extended 11 

of  railroad  commissioners   12 

of  state   board   of   equalization 13 

not  herein  provided  to  be  declared  by  law 20 

not  to  exceed  four  years  under  statute 20 

when   to   commence 20 

at  first   election    20 

TEST — not  required  as  a  qualification  for  office 20 

TESTIMONY— on  prosecution  for  lobbying 4 

TEXT-BOOKS— shall  be  adopted  by  local  boards 9 

not  to  be  changed  within  four  years 9 

THREE-FIFTHS  VOTE— required  to  amend  city  char- 
ter  11         8       403 

THREE-FOUETHS  OF  JURY— may  render  verdict 1         7       135 

TICKETS — in  lottery,  sale   of  prohibited    4 

on  transportation  lines  not  to  be  given  at  a  discount.  12 

free  tickets  prohibited  to  state  officers 12 

exception  as  to  railroad  commissioners 12 

TIDE-LANDS — owners  of  not  to  exclude  right  of  way 

over  waters  adjoining 15         2       569 

within  two   miles   of   cities   or   towns  to   be  withheld 
from  sale  or  grant  15 

TITLE  OF  ACT— to  express  the  subject 4 

TOLLS — appellate  jurisdiction   of   supreme   court 6 

original  jurisdiction   of   superior   court 6 

TORTS — imprisonment  for    1 

TOWN  COUNCIL— to  fix  water  rates  annually 14 

TOWN  GOVERNMENTS 11 

TOWN  PLATS — special  legislation  prohibited   4 

TOWNS — may  make  police  or  sanitary  regulations 11 

legislature  may  vest  power  of  taxation  in 11 

to    appoint   inspection    officers 11 

money  collected  to  be  paid  into  treasury 11 

restriction  on  power  to  incur  debts 11 

provisions   to   be   made  for   payment 11 

liabilities   of,   when   void 11 

may  protect  themselves  from  alien  paupers 19 

may  remove  Chinese   19 

TOWNSHIP    OFFICERS— to    be    governed    by    general 

laws  only   4       25       253 


3 

570 

24 

243 

4 

296 

5 

315 

15 

174 

1 

561 

6 

376 

25 

253 

11 

440 

12 

452 

14 

458 

16 

458 

18 

460 

18 

460 

18 

460 

1 

580 

4 

581 

INDEX.  793 

Art. 
TOWNSHIPS — proliibited  from  giving  or  loaning  credit  4 
legislature  to  provide  for  organization  of,  by  general 

laws    11 

assessment  and  collection  of  revenue 11 

election  and  appointment  of  ofiicers 11 

may  make  police  and  sanitary  regulations 11 

power  of  taxation  may  be  delegated  to' 11 

TRANSFER — of  corporation  stock,  where  to  be  made.  .12 

TRANSMISSION— of   property   rights   of  foreigner 1 

TRANSPORTATION    COMPANIES— are    common    car- 
riers     12 

right  to  connect  with  companies  at  state  line 12 

delay  or  discrimination  prohibited IS 

supplies   or   materials   not  to  be   furnished  by   officer 

or  agent  of  company 12 

not  to  grant   free   passes  to   state   officials 12 

acceptance  of  such  a  forfeiture  of  office 12 

exception   as  to   railroad   commissioners    12 

combination    between    prohibited    12 

fares    and    freights    once    lowered    cannot    be    raised 

without   consent   of   government 12 

government  has  power  to  regulate  fares  and  freights.  12 
discrimination  as  to  persons  and  places  prohibited.  .  .12 
charges    to    way    stations    not    to    exceed    charges    to 

stations   beyond    12       21       498 

excursion  and  commutation  tickets  may  be  at  special 

rates     12 

state  to  be  divided  into  three  districts 12 

a  railroad  commission  to  be  elected 12 

salary   and  term   of   office 12 

qualification  and   disqualification  for  the   office 12 

act  of  majority  to  be  the  act  of  all 12 

powers   and    duties    of    commission 12 

power  to  fix  rates  of  fares  and  freights 12 

rates  fixed  deemed  fair  and  reasonable 12 

penalty  for  failure  to  conform  to  rates  as  fixed.... 12 

imprisonment  of  officer,  agent,  etc 12 

exemplary  damages  recoverable   12 

TREASON— in  what  consists   1 

evidence  necessary  to  convict  of 1 

reprieve  and  pardon  in  case  of 7 

TREASURER--subject  to  impeachment 4 

refunding  moneys,  special  legislation  prohibited 4 

mode  and  time  of  election 5 

term   of  office    5 

compensation   of    5 

to  canvass  returns  on  revision  of  Constitution 18 


Sec. 
31 

Page 
270 

4 

370 

4 

370 

5 

371 

11 

440 

12 

452 

14 

491 

17 

181 

17 

496 

17 

496 

17 

496 

18 

496 

19 

497 

19 

497 

19 

497 

20 

497 

20 

497 

20 

497 

21 

498 

21 

498 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

22 

500 

20 

183 

20 

183 

1 

350 

18 

234 

25 

253 

17 

286 

17 

286 

19 

286 

2 

578 

794  INDEX. 

Art.  Sec.  Page 

TREASUEY— money,  when  and  how  drawn 4  32  274 

members  of  legislature  to  be  paid  out  of 4  23  242 

special  statute  cannot  authorize  refunding  of  money.   4  25  253 

TREATY— of  Guadalupe  Hidalgo    711 

TRIAL  BY  JURY— right  to 1  7  135 

three-fourths  may  render  verdict 1  7  135 

right  to  jury  may  be  waived  by  consent 1  7  135 

in  criminal   cases  not  felonies 1  7  135 

no  person  to  be  twice  in  jeopardy  of  same  offense...   1  13  147 

nor  compelled  to  be  witness  against  himself 1  13  147 

TRIAL  FOR  LIBEL— evidence  in   1  9  140 

TRIAL  OF    IMPEACHMENT 4  17  233 

TRUST  COMPANIES— how  assessed  for  taxation 13  14  539 

TRUSTEES — of  corporations  and  companies,  liable  for 

embezzlement     12  3  479 

TWO-THIRDS  VOTE— required  to  pass  bill  over  veto.   4  16  231 

for  conviction  on  impeachment 4  17  233 

for  increasing   or   diminishing  number   of   judges....   6  9  334 

for  removal  of  justices   and   judges 6  10  335 

for  removal  of  county   seat    11  2  367 

on  proposed  amendments  to  Constitution 18  1  577 

on  revision   of   Constitution    18  2  578 

u 

UNAUTHORIZED  AGREEMENT— null  and  void 4  32  274 

UNCULTIVATED  LANDS— at  what  value  assessed 13  2  526 

UNDUE  INFLUENCE— on  elections  prohibited 20  11  588 

UNIFORM  OPERATION  OF  GENERAL  LAWS 1  11  142 

UNITED    STATES— official   incompetent    to    hold    state 

office     4  20  236 

property  exempt  from  taxation 13  1  512 

UNITED  STATES  CONSTITUTION 689 

See  Federal  Constitution. 

UNITED    STATES   SENATOR— governor   ineligible    to 

office    of    5  20  288 

how  elected   5  20  288 

UNIVERSITY— appropriations,  when  prohibited   4  30  270 

to  constitute  a  public  trust 9  9  360 

organization  and  government  of   9  9  360 

legislative  control  over 9  9  360 

to  be  independent  of  political  and  sectarian  control.  .    9  9  360 

fund,  how  appropriated    9  9  360 

sex   not   to    debar    admission    to 9  9  360 

taxes  for   13  14e  543 

USE  OF  STREETS— by  gas  and  water  companies 11  19  468 

conditions  of   11  19  468 


Sec. 

Page 

12 

229 

8 

280 

15 

284 

3 

295 

6 

330 

1 

364 

7 

386 

22 

500 

INDEX.  795 

"  Art 

VACANCY— in   legislature,   how   filled 4 

in  office,   when   filled   by  governor 5 

in  office  of  governor,   how  filled 5 

to  fill  vacancy  in  justices   of  supreme   court 6 

in   superior   court    6 

of  state  prison  directors,  how  filled 10 

in  board   of  supervisors,  by  whom   filled 11 

in  office   of  railroad   commission 12 

VALIDATING  ACTS— of  deeds,   wills,  etc.,  by   special 

legislation,    prohibited 4       25       253 

VALIDITY— of   statutes 

when  in   part  invalid 

See  Statutes. 

VALLEJO — bonded  indebtedness  of 11 

VESSELS — exempt  from  taxation 13 

VENUE — special  acts  to   change  prohibited 4 

VETO — power  of  governor   4 

two-thirds  of  members  elected  may  pass  bill  over...   4 

VIVA  VOCE — elections  by  legislature  to  be 4 

VOCATION— sex  not  to   disqualify  from  following 20 

VOTE — property  qualification  not  to  be  required 1 

qualification    for   right   to 2 

to  be  by  ballot 2 

special   laws   prohibited    4 

on  election  by  legislature  to  be  viva  voce 4 

and  entered   on  journal 4 

on  removal  of  county  seat 11 

two-thirds  required    11 

on  organization    of    county    governments 11 

on  city   charter,   how  taken 11 

three-fifths    required    11 

corporations  may  cumulate  or  distribute 12 

to  be  taken  on  creation  of  state  debt 16 

VOTE — on   proposed   amendment   to    Constitution 18 

on   revision   of  Constitution 18 

VOTERS — property  qualification   not  required 1 

who  are  and  who  are  not 2 

privilege  from   arrest    2 

exemption  from  militia  duty 2 

residence,  test  of 2 

persons  convicted  of  certain  crimes  disfranchised.  ..  .20 

VOTING  MACHINES— use  of 2         6       196 


IX 

XIU 

18 

460 

4 

529 

25 

252 

16 

231 

16 

231 

28 

270 

18 

595 

24 

187 

1 

190 

5 

196 

25 

252 

28 

270 

28 

270 

2 

297 

2 

297 

4 

370 

8 

403 

8 

403 

12 

490 

1 

571 

1 

577 

2 

578 

24 

187 

1 

190 

2 

193 

3 

196 

4 

196 

11 

588 

796  INDEX. 

^^                                            Art  Sec  Paff6 

WAGE,  MINIMUM— for  women  and  minors 20  17^  594 

WAIVER— of  right  to  trial  by  jury 1  7  .135 

WARDEN  OF  STATE  PRISON— appointment  of 10         3  364 

power  to  appoint  officers  and  employees ,.,.10  3  364 

duties   to   be   defined   by   legislature 10  5  365 

WARRANTS— of  arrest,  issuance  of 1  19  182 

WATER— right  to  introduce  into  cities,  etc 11  19  468 

WATER   AND   WATER   RIGHTS 14  1  561 

appropriation  declared  a  public  use 14  1  561 

subject  to  regulation  and  control   of  state 14  1  561 

rates  to  be  fixed  by  supervisors  annually 14  1  561 

order,   when    to    take    effect 14  1  561 

peremptory  process  on  failure  to  fix  rates 14  1  561 

forfeiture  of  franchise  for  collecting  other  than  estab- 
lished  rates    14  1  561 

right  to  collect  rates  a  franchise 14  2  567 

to   be   exercised   under  authority   of  law 14  2  567 

international   water  system    4  31  270 

WATER    COMPANIES— in     cities,    right    to    regulate 

charges    11  19  468 

WATER  FRANCHISE— when  liable  to  forfeiture 14  1  561 

WATER  RATES — in  cities  and  towns,  to  be  fixed  an- 
nually by  supervisors 14  1  561 

forfeiture  for  excessive  charges 14  1  561 

WATERWORKS— ground  of  forfeiture 14  1  561 

WATERING  STOCKS— by  fictitious  increase,  void 12  11  489 

WHARFAGE — charges  to  be  regulated  by  legisuation. . .   4  33  276 

WIFE— separate  property  of   20  8  586 

WILLS — cannot  be  validated  by  special  acts 4  25  253 

WITNESS— no  religious  restrictions 1  4  132 

not  to  be  unreasonably  detained 1  6  134 

nor  confined  with   criminals 1  6  134 

deposition  of  in  criminal  cases 1  13  147 

right  of  accused  to  have 1  13  147 

no  person  to  be  compelled  to  testify  against  himself.  .   1  13  147 

concurrence  necessary  in  treason 1  20  183 

WRITS — appellate  jurisdiction   of  supreme   court 6  4  296 

where   returnable    6  4  296 

of  district  courts   of  appeal G  4  296 

original   jurisdiction    of   superior   court 6  5  315 

unaffected  by  adoption  of  new  Constitution 22  2  601 


INDEX.    .  797 

*                                             Art.  Sec.  Page 

YEAS  AND  NAYS— to  be  taken  on  final  passage  of  bills  4  15  230 

to  be  entered   on   minutes 4  15  230 

to  be  taken  on  vote  on  proposed  amendments 18  1  577 

YUBA — a  superior  judge  to  be  elected 6  6  330 

salary   of  judge Q  17  342 


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